In my last post we considered whether the insecurity of unitary executive theory from the standpoint of constitutional text and other accepted methods of constitutional interpretation may explain the reluctance of Professor Prakash (and perhaps other unitarians) to acknowledge its downsides. In this post I will address a related reason, namely that the argument for the unitary executive historically has had less to do with constitutional text or original meaning than with the idea that it produces a superior form of government. Given the we are now for the first time truly living with the unitary executive in maximalist form, it may not be surprising that its adherents are reluctant to revisit its actual consequences.
As Chief Justice Taft, the author of the preeminent unitarian opinion in Myers, confided privately at the time:
I agree that in the beginning it might have been decided either way, but it was decided in favor of the view that the Constitution vested the executive power of removal in the President, with only the exceptions that appear in the instrument itself. My experience in the executive office satisfies me that it would be a great mistake to change that view and give to the Senate any greater power of hampering the President and tying him down than they have under the view we voted to recognize as the proper one.
Robert Post, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, 45 J. Sup. Ct. Hist. 167, 173 (2020) (quoting letter of Sept. 16, 1925 from Chief Justice Taft to Justice Butler).
Taft here is advancing one of the principal consequentialist arguments made by unitarians—namely that allowing Congress to restrict the president’s power of removal (in that case by requiring the Senate’s assent) would have the effect of dividing the executive power, interfering with the president’s ability to provide overall direction to and management of the executive branch, and potentially making executive officers unduly subservient to Congress. A modern twist on this argument adds the democratic accountability that (allegedly) results from making executive officers completely subject to the president’s direction and control. Thus, Prakash contends that the consequences of the unitary executive are desirable:
The laws of the United States grant some discretion to the executive department. The President, elected to exercise executive power, should be able to control the exercise of that discretion. This supervisory power makes it more likely that the executive officers will pull in one direction—the President’s direction. The alternative enshrines a fair bit of chaos, for it envisions independent executive officials exercising discretion and pulling in different directions, often acting at cross purposes. Absent a centralizing influence, we might find that [sic] departments opposing climate-change policies tooth and nail, others adopting modest measures to combat climate change, and still others making it their central purpose to halt climate change. This is no way to run an executive. Additionally, the public properly equates the Executive with law execution (see Schoolhouse Rock) and knows that presidential candidates have policy agendas. In that environment, the public will hold presidents responsible for law execution, including the discretionary choices that officials make.
Too Unitary, 135 Yale L.J.F. at 545-46.
I would note this argument seems a bit overstated as it is unlikely that executive officers appointed by the same president will pull in entirely different directions. Indeed, that is precisely the point made by Prakash on the Executive Functions podcast (quoted in my first post) where he argued that once the president has appointed a majority of the FTC commissioners they are likely to move forward with his agenda (i.e., pull in his direction). Of course, there is a big difference between generally agreeing with the president’s policy priorities and making specific decisions in accordance with his wishes. This distinction is one that Prakash and many other unitarians tend to ignore.
This is not to dispute that there is a perfectly respectable Kaganesque argument for the benefits provided by presidential administration. See generally Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2384 (2001) (arguing that presidential administration in many modern contexts “promotes the values of administrative accountability and effectiveness”). What is less clear is whether it constitutes a valid constitutional argument, particularly from an originalist perspective. Indeed, Prakash’s justification for presidential intervention in administrative decisionmaking appears to be in sharp conflict with the original conception of the presidency as he has described it. The “original presidency,” he has said, “focused on duty,” i.e., faithfully executing the law, rather than on campaign promises or policy agendas. The Living Presidency at 48-50. The rise of a plebiscitary democracy, in which presidents claim a popular mandate to implement campaign promises independent of what Congress has enacted, is at the very root of the dangerous “living presidency” Prakash opposes. See id. at 50-53, 73-79. Yet that very conception of the presidency, which he says has “no constitutional foundation,” id. at 73, is what he relies on to support the unitary executive. This is very puzzling.
As Professors Sunstein and Vermuele have observed, the rationale for the modern unitary executive (or, as they more precisely term it, the “strongly unitary executive”) is based in large part on “emphatically present-day concerns and fears” about the need for presidential control of unelected bureaucracies to ensure democratic accountability and protect liberty. Cass R. Sunstein & Adrain Vermeule, The Unitary Executive: Past, Present, Future, 2020 Sup. Ct. Rev. 83, 95 (2021). These were not prominent concerns of the founding generation but are rooted in the rise of the modern administrative state (as Prakash’s example of climate change policy illustrates).
Sunstein and Vermuele cite Alexander Hamilton’s views in The Federalist as indicative of the framers’ perspective. Hamilton famously wrote that “the consent of [the Senate] would be necessary to displace as well as appoint” and executive officer, but he continued in a lesser known passage:
A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself.
Sunstein & Vermuele, 2020 Sup. Ct. Rev. at 92 (quoting The Federalist No. 77). Sunstein and Vermuele cite this passage to show that Hamilton did not understand the Vesting Clause as determinative of the president’s right to fire officers, which is true enough (though, to be fair, Hamilton was unfamiliar with Schoolhouse Rock). But it also shows that Hamilton did not believe it normatively desirable that the president replace capable officers with those who were personally loyal to him or more compatible in their political or policy views. Indeed, in The Federalist No. 76, Hamilton expressed the hope that the Senate’s role in confirming appointments would deter the president from nominating “candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
Furthermore, while Hamilton would subsequently change his mind about whether Senate consent was required to remove an officer, this did not necessarily reflect a change in his views on the benefits of stability in office. After all, it remained the case that a president would be disincentivized from firing a capable officer without assurance that the Senate would confirm a successor. James Madison even stated that a president “will be impeachable for the wanton removal of a meritorious officer,” which strongly suggests that the president should rarely, if ever, remove a capable officer who is faithfully executing the law. See 1 Annals of Congress 372-73 (1789).
It is true that the presumption has long been established that incoming presidents will select new nominees to fill cabinet and many other top policymaking offices. Moreover, the Senate has generally deferred, within reason (and sometimes without it), to the president’s choices for key positions in his administration. But these practices are not constitutionally required, and they co-exist with countervailing norms that largely insulate many important government officers and functions from direct presidential interference.
In short, one can argue presidential administration is generally desirable as a policy matter under the conditions of the modern administrative state, as then-Dean Kagan did. But if one is going to constitutionalize the unitary executive, it is important to define what that means in terms of how the president will interact with different officers and functions and to understand whether and how that will change the way the government of the United States has historically operated. In addition, we must examine how the establishment of a “strongly unitary executive” will affect and be affected by the pathologies laid out by Prakash in The Living Presidency and elsewhere.
Put another way, we have to go beyond a Schoolhouse Rock level analysis to understand the consequences of the strongly unitary executive. A good place to start is with how “dependent” officers and agencies (i.e., those who have always been subject to at will removal by the president) have actually functioned historically. We will turn to that in the next post.