The President's Approval Power

24 Pages Posted: 6 Feb 2023 Last revised: 30 Nov 2023

Date Written: February 3, 2023

Abstract

This Essay introduces the President’s approval power as it was originally
understood in the United States. Leading proponents of a unitary executive
President have asserted that the President’s absolute power to control
subordinate officers includes power to veto or approve subordinates’
discretionary actions before they take effect. This Essay reconsiders the
approval power’s purportedly unitary function and presents previously
overlooked evidence of the originalist foundations of a presidential approval
power. My comprehensive analysis of every public act passed by the First
Congress shows that the founding generation never understood Article II to
grant the President general authority to approve subordinates’ decisions.
Approval was instead a permissive power that the First Congress withheld
in a vast majority of statutes and granted in only a handful of laws. Even
when statutes granted the President or superior officers an approval power,
moreover, they did not gain unitary control. Approval afforded only ex post
review without power to force nonremovable subordinates to initiate
regulatory action implementing superiors’ preferred policies.

Early practices surrounding approval power offer further evidence
against originalist arguments for a unitary executive President with absolute
control over subordinate officers. At the founding, approval offered a partial
measure of accountability that Congress could incorporate when allocating
decision-making power within the executive branch. Approval sometimes
checked spending and contracting decisions that would be difficult to undo
by removing an officer. In other instances, approval governed executive
adjudications conducted by officials who operated outside formal levers of
control established by appointments and removal. Statutory approval
permissions reflected the understanding that the President and other
superior officers would exercise partial but not absolute control over
subordinates’ execution of the laws.

Keywords: Executive Power, Article II, Originalism, Founding Era, Sinking Fund Commission, Unitary Executive, Constitutional Law, Administrative Law

JEL Classification: H11, K20, K23

Suggested Citation

Chabot, Christine Kexel, The President's Approval Power (February 3, 2023). 92 Fordham Law Review 373 , Available at SSRN: https://ssrn.com/abstract=4347335 or http://dx.doi.org/10.2139/ssrn.4347335

Christine Kexel Chabot (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States

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