The Binary Executive

Abstract

In recent years, the Supreme Court has begun to implement a “unitary” theory of the Executive. According to this theory, the President alone has the executive power. At the same time, the Court has greatly intensified its scrutiny of administrative policymaking, abandoning deference on questions of law and at times taking a steel-hard look at questions of policy and fact as well. These moves together create novel constitutional structures, internally contradictory jurisprudence, and unstable patterns of political rule. The unitary executive theory presumes that the President alone may exercise executive power. But by wresting away the policymaking discretion Congress has delegated to executive agencies, the Court itself exercises executive power. It makes particularized policy decisions without encoding general rules to govern the disposition of future cases. The Court is thus constructing the unitary executive with one hand and fragmenting it with the other. In this emerging regime, there are two chief executives—the President and the Court. The Executive is not unitary; it is binary. The binary executive is a constitutional anomaly that disturbs settled understandings, undermines the quality of government, and aggrandizes the Court at the expense of both the elected branches and its own legitimacy.

Keywords: constitutional law, administrative law, constitutional theory, unitary executive, major questions doctrine, judicial review of agency action

JEL Classification: K23