In the last post we discussed how the unitary executory changes the psychology of executive office from being one of an agent of the law to being an agent of the president. Some might object, however, that the unitary executive can co-exist with a measure of independence among executive officers. Professor Prakash seems to suggest as much when he observes that “[t]he Senate’s role in consenting to appointments is vital, not only because senators vet a candidate’s fitness for office, but also because senators often convince nominees to supply various assurances, including, among other things, their future use of delegated powers, the advice these nominees will give the president, and the nominees’ willingness to resign should presidents abuse their power.” Living Presidency at 252-53.
Under some circumstances, there would be merit to this point. As discussed in prior posts, in the past the conventional wisdom was that presidents could not properly direct officers in the exercise of powers committed to their discretion. Regardless of whether the executive branch fully embraced this understanding, there were strong political and legal disincentives to prevent presidents from overtly attempting to direct executive officers in their decision-making. A determined officer therefore had significant leverage to push back against presidential pressure.
For example, from the Nixon administration to the early Obama administration, there were a number of occasions where presidents and “dependent” regulatory agencies (i.e., those headed by officers removable at will) clashed over the issuance of regulations or other specific regulatory decisions. See generally Robert V. Percival, Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?, 79 Fordham L. Rev. 2487, 2497-2532 (2011). These disputes were resolved in a variety of ways. Sometimes agency officials knuckled under to White House pressure; sometimes the president backed down and the agency went ahead with its preferred action; sometimes a compromise was reached; and sometimes an agency official resigned in protest or in recognition of irreconcilable differences. Moreover, because judicial review of the ultimate agency action or inaction was often available, courts sometimes overturned the agency decision on the ground that it resulted from improper communication or political pressure from the president or White House. See id. at 2504-05, 2508-09 & 2523-24 (citing cases).
Unitarians and nonunitarians have debated whether these episodes support or undermine the proposition that the president has constitutional directive authority over regulatory decisions. Compare Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 348 (2008) (arguing that this history is consistent with unitary executive theory) with Percival, 79 Fordham L. Rev. at 2499-2500 (arguing the contrary). But the relevant question here is what degree of control presidents had in actual practice, not in constitutional theory. Presidents undoubtedly had indirect influence over agency decisions by virtue of the appointment power, which enables them to select individuals inclined to follow their policies generally, and they also could use their internal bully pulpit to try to influence specific decisions. Had they been willing to accept the political costs and legal/practical risks, they could have fired uncooperative officials and tried to replace them with more pliant appointees. None, however, took this step.
Furthermore, none of the presidents in question overtly challenged the norm that formal decisionmaking authority rested with the agency, not with the president. Significantly, while they issued executive orders establishing internal review mechanisms for regulatory actions, they stopped short of claiming directive authority over the decisions of dependent agencies. See Percival, 79 Fordham L. Rev. at 2513 (noting that “the Reagan, Bush, and Clinton executive orders expressly eschewed assertions of [directive] authority”); id. at 2530 (“President Obama continues the tradition of eschewing directive authority in the executive order outlining his regulatory review program.”). Thus, in practice agency officials could rely on the norm or understanding that they had the ultimate decisionmaking authority to resist presidential pressure. Cf. Percival, 79 Fordham L. Rev. at 2533 (the question of directive authority “determines whether agency heads have a legal entitlement to refuse to comply with a presidential directive when it directs them to act in a way they believe is illegal, improper, or unwise”). There was simply no easy mechanism for a president to overcome a determined agency official’s refusal to make a particular regulatory decision.
The unitary executive theory changes the psychology of office by identifying the president as the constitutional decisionmaker. The agency official makes decisions only as a matter of delegation from the president, and that delegation can be revoked at any time. Even if the regulatory decision constitutes the jural act of the agency, rather than the president, it would be constitutionally wrongful for the agency officer to refuse to carry out the president’s direction, just as it would be to refuse to carry out an order of a court. Moreover, the unitary executive theory, at least the version endorsed by Prakash, would say that the president could perform the jural act himself, a theory that goes beyond anything that Jackson or Nixon claimed. According to Prakash, Jackson could have simply bypassed Duane and directly ordered the withdrawal of federal funds from the Bank of the United States. Nixon likewise could have directly ordered the withdrawal of the grand jury subpoena and/or fired Cox personally. This theory leaves little or no room for an executive officer to assert a measure of decisional independence.
Consider then Prakash’s observations about the importance of the confirmation process. If an officer has little or no independent responsibility to execute the laws, what assurance can she credibly give the Senate? For example, if Jackson was correct in telling Duane that it was his duty to comply with the order to remove funds from the Bank (and Prakash evidently believes he was), how could Duane have promised the Senate that he would violate his constitutional obligation? Indeed, how could the Senate even ask him to violate his duty?
Referring to one of Trump’s second term executive orders, Prakash says it “is monumental because it reflects the triumph of a legal movement to reestablish a unitary executive.” Too Unitary, 135 Yale L. J. F. at 547. Prakash is critical of these executive orders for going beyond the proper limits of unitary executive theory, but his criticism is not really that the executive orders are “too unitary,” the title of his article notwithstanding. Instead, he objects that they allow the president to do things that are illegal or, more precisely, things that Professor Prakash believes are illegal.
But everyone agrees the president cannot do things that are illegal. And by everyone, I am referring not only to the executive bootlickers at OLC and the White House counsel’s office, but the legal advisors to Vladamir Putin, Xi Jinping and Kim Jong Un. The question is who gets to decide what things are legal. As noted above, in the past executive officers had a say in determining what was legal and what was not. This is no longer the case.
For example, Prakash objects to a Trump executive order which declares “the policy of [the] United States [is] that no further United States foreign assistance shall be disbursed in a manner that is not fully aligned with the foreign policy of the President of the United States.” Prakash says “[t]here is no constitutional grounding for this claim.” Too Unitary, 135 Yale L. J. F. at 559. But who cares? If the president says that foreign assistance is not to be disbursed, his subordinates cannot disobey his orders. If the Senate asks a nominee who will be responsible for disbursing foreign assistance about this, she cannot commit to disregarding the president’s executive order. Not only would such a commitment result in the president swiftly pulling her nomination, but it would be unconstitutional under Prakash’s own reasoning, which says that “the Constitution authorizes the President to superintend and control the legal interpretations of his mere instruments.” Id. at 553. Perhaps Prakash does not mean this to be the equivalent of saying that for the executive branch “the president’s word is law,” but human experience and (as we will see) empirical observation indicate that this is how it will cash out.
In the next post we will look at how the unitary executive affects one particular cabinet officer and department, namely the attorney general and the Department of Justice.