The DIY Unitary Executive

Abstract

This Article explores a simple argument for preserving a measure of formal agency decisional independence in the event that the Supreme Court, as Seila Law LLC v. Consumer Financial Protection Bureau seems to portend, adopts an unalloyed, strong version of the unitary executive theory. According to strong unitarians, Article II’s vesting of the executive power in the President authorizes that official to control discretionary powers that Congress has granted to agencies. The executive power, however, is the power to enforce laws, not to break them. It should follow that the President, to exercise an agency’s statutory discretion legally, should have to comply with any procedural constraints that Congress has placed on the exercise of that power. Put another way, the President, to take over an agency’s role as the “decider,” should have to do the decider’s work. Presidents, notwithstanding their authority to delegate, should find that these burdens are often not worth the trouble, preserving space for agency decisional independence even in a unitarian world.

Keywords: unitary executive, executive power, Vesting Clause, removal