The Supersecretary in Chief

Abstract

The President often makes binding decisions using authority that statutes delegate to another federal officer. I dub the President in this capacity the Supersecretary in Chief. Presidents Obama and Trump, for example, dictated environmental and immigration policies even though federal statutes assign such decisions to other officers. Unitary executive theory accepts this practice on the premise that the Constitution vests all executive power in the President. Hence, the President may act in place of any officer in the executive branch. When acting as Supersecretary in Chief, however, the President does not engage the procedures that statutes require of statutorily designated officers and does not face the same scope of judicial review. Therefore, the President acting as Supersecretary in Chief inappropriately shifts the balance of powers between the three branches of government. The President should not be permitted to act as Supersecretary in Chief. In the absence of action to rein in the Supersecretary in Chief, the Administrative Procedure Act presents a second-best alternative. Applying the Act to the Supersecretary in Chief would partially restore the balance of powers and advance the Act’s normative goals.

Keywords: President, unitary executive, Administrative Procedure Act, balance of powers, Franklin v. Massachusetts