Congressional oversight is a means of “caging the executive lion” which Prakash believes to be constitutional and appropriate. See The Living Presidency at 261-64. But he overlooks the ways in which the unitary executive makes congressional oversight more difficult.
Congress assigns duties and authorities to heads of departments and other executive officers. Congressional oversight is a means of holding those officers to account for how the law is being executed. But the combination of the president’s authority to dictate to executive officers the proper interpretation of the statutes they operate under and to direct them in the exercise of their powers under those statutes undermines congressional oversight. The officers can be called to testify, but they can shift responsibility to the president (as Jackson would have had Duane do). Meanwhile, the president cannot be called to testify, and, according to longstanding executive branch doctrine, neither can top White House aides who may be the true decisionmakers. See The Living Presidency at 251 (“[O]n the assumption what senior White House officials say represents the president’s will, these officials direct the vital work of other significant officers, including cabinet secretaries.”).
This exacerbates a problem Prakash rightly identifies, namely the trend of presidents stretching statutory authorities in order to, in effect, enact new programs that Congress has not approved. See, e.g., The Living Presidency at 51-52 (discussing President Obama’s “pen and phone” strategy to adopt the DACA and DAPA immigration programs). Most often these involve statutory authorities that have been delegated to a specific executive officer, not to the president. Yet once it is accepted that the president can rightfully direct executive officers in the performance of their statutory duties, as it increasingly has been in recent years, it becomes commensurately difficult to hold the officer accountable for the exercise of the delegated authority.
Consider, for example, the student loan forgiveness program adopted in the Biden administration. When he ran for president in 2020, Biden had promised to adopt a broad student loan forgiveness program. Initially this proposal focused on legislative action, although some of Biden’s rivals, such as Senator Elizabeth Warren, suggested it could be done through existing authority delegated to the secretary of education. Following Biden’s election and the confirmation of Miguel Cardona as the secretary of education, the new administration announced that the secretary would undertake a review to determine whether there was existing authority to forgive student debt. This review consisted of legal analysis by the general counsel of the Department of Education and DOJ’s Office of Legal Counsel, which ultimately determined (surprise!) that the authority could be found in an existing statutory provision (though a different provision than the one Warren relied on). The secretary then announced a broad loan forgiveness program which covered about $430 billion in student debt.
Formally this major decision had been made by the secretary of education, but everyone understood that this was a legal fiction. In reality, President Biden (or, more likely, his advisors) realized that Congress would not pass the student debt relief promised in the campaign and therefore directed the administration’s lawyers to find a way to accomplish the goal without legislation. This is precisely the dynamic Prakash describes (and decries). See The Living Presidency at 52 (“the desire to keep promises and thereby satisfy an electoral base often causes presidents to strain and stretch” existing law and “transgress existing norms, be they constitutional or statutory”). Executive branch lawyers, meanwhile, are highly incentivized to “provide legal cover and exoneration for executive aggrandizement.” Id. at 87; see also id. at 21 (“as judicial review becomes weaker or nonexistent, executive lawyers find more legal wriggle room and adopt increasingly implausible readings of the law”). Even where judicial review is potentially available, there is little reason not to adopt the most aggressive reading of the law so long as the president is prepared to accept a possible or likely loss in court. See, e.g., Biden v. Nebraska, 600 U.S. __ (2023) (rejecting the Biden administration’s interpretation of its authority to cancel student debt). Increasingly, presidents are willing to accept such possible losses and even to seek political gain from adverse judicial decisions by attacking the legitimacy of the courts.
The unitary executive plays a significant role in enabling this phenomenon. Because everyone understood that Cardona himself neither was responsible for interpreting the relevant statutory provisions nor actually made the decision to implement the loan forgiveness program, there was little point in trying to hold him accountable for these actions. Congressional Republicans made some half-hearted efforts to get documents relevant to White House and OLC involvement in the decisionmaking process, but there was little concerted effort to find out who actually made the decision to implement student loan forgiveness through administrative action. As a result there was no one who took responsibility for a decision that would have cost taxpayers nearly a half trillion dollars.
One major obstacle to Congress assigning responsibility for such administrative decisions is the doctrine of executive privilege and related doctrines which executive branch lawyers have developed to stymie congressional oversight. To Prakash’s credit, he recognizes the importance of dramatically reining in executive privilege if we are to “recage the executive lion.” See The Living Presidency at 261-64. Indeed, he seems to suggest that executive privilege simply be eliminated as a defense to congressional oversight. See id. at 262-64 (“Our system of checks and balances requires a Congress able to check the executive, which is impossible if the executive can block inquiries by invoking executive privilege.”).
A system that operated as Prakash seems to envision might indeed compensate for many of the problems caused by the unitary executive. Imagine, for example, if the president was permitted to fire any executive officer but was required to explain the reason to Congress. And if Congress were entitled to all documents, emails, text messages, etc. that could verify or undermine the president’s explanation. And if every executive officer were entitled to and, if called, required to testify before Congress regarding orders they believed were illegal or required them to exercise their statutory authorities in an improper manner. And if meritorious officers who faithfully executed the law were protected against the economic consequences of wanton removal by, for example, continuing to receive their salary for the remainder of their term. These steps, all of which appear to be constitutional in Prakash’s view, could eliminate many and perhaps all of the harmful consequences of the unitary executive; indeed, one could imagine them improving (from the standpoint of congressional supremacists such as myself) on the mostly unitary system that has prevailed since the Clinton administration. Cf. Strauss, 75 Geo. Wash. L. Rev. at 702 (“Our most recent Presidents, if not their predecessors, seem to have been at pains to convey the impression that they are personally responsible for the conduct of domestic governance, to a degree that extends to the resolution or decision of particular administrative issues; and their cabinet officials sometimes speak as if they were following binding presidential orders, rather than exercising their own statutory powers.”).
Unfortunately, Prakash makes no effort to grapple with the institutional, jurisprudential, statutory and possibly constitutional changes that would be needed to make this desirable world a reality. There are more modest and achievable (which is not to say easy) reforms that could be considered to restore some degree of congressional influence over the administration of the law. See generally Christopher J. Walker & Aaron Nielson, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1 (2023). But all these measures would be for the purpose of offsetting the harms caused by the triumph of the unitary executive.
Prakash’s stubborn refusal to acknowledge these harms is particularly perplexing in light of the following passage from his book on presidential power:
American history is . . . littered with examples of Congress pushing back against executive overreach. Consider limitations on the president’s power to fire officers. Whatever one thinks of their constitutionality (I am dubious), federal laws limiting the executive’s power to remove federal officers (“for cause” laws) are ubiquitous and represent sustained efforts to curb presidential authority. These laws have been successful, for modern presidents respect these limitations and almost never even try to remove such officers.
The Living Presidency at 248.
Here Prakash acknowledges several important realities. The first is the unsurprising fact that independent executive officers tend to restrain executive overreach and promote faithful execution of the law. The second is that for-cause removal limitations have been effective at protecting independence. The third is that these limitations have helped to establish and reinforce norms of independence that sweep beyond the formal legal prohibitions. Until recently, presidents have respected the independence of many types of officers, such as inspectors general and the director of the FBI, even though they have the formal legal power to fire them without cause. For example, the president has never fired a comptroller of the currency, even though the only legal restriction on doing so is that the president must communicate to the Senate his reasons for removal. See Walker & Nielson, 76 Vand. L. Rev. at 10 (“While other factors obviously may also be at play, no president has ever fired a Comptroller of the Currency, and that position is protected only by a weak dose of Congress’s anti-removal power.”).
These norms have been largely if not entirely swept away in the enthusiasm for one man rule that has accompanied the rise of unitary executive theory. The current president, for example, has used the removal power not only against officers protected by for cause removal provisions (such as the FTC commissioner involved in the Slaughter case) and those with strong norms of independence (such as inspectors general), but against categories of officers no president had previously attempted to remove or had even claimed the power to remove. These include inferior officers not appointed by the president, interim U.S. attorneys appointed by the courts, and even officers traditionally understood to be part of the legislative branch.
It may be true that a Congress determined to “cage the executive lion” can still effectively use oversight and other tools to do so even under the maximalist version of the unitary executive. But there can be no doubt that the unitary executive both makes the problem greater and the solutions more difficult. For example, the current administration has not only fired numerous inspectors general but did so without complying with the notice requirements provided by law, which it maintains (at least plausibly) are a violation of unitary executive principles. This does not inspire confidence in the willingness of the executive to acknowledge a constitutional obligation to cooperate with oversight investigations regarding such terminations (or anything else). And while future administrations may purport to be more accommodating as a matter of policy, it is doubtful that they will voluntarily give up any of the constitutional powers that have been asserted by the current administration. As Prakash himself points out, this is not how administrations have worked in the past. Instead, every administration views presidential power as “a one-way rachet,” where the president and his supporters will insist that “if one or more presidents have taken some step or act, the incumbent absolutely must be able to do the same.” The Living Presidency at 128-29.
In short, congressional oversight is not going to be successful in caging the executive lion without a lot of additional reforms. In our final post, we will consider it might look like to begin reforming and constraining the unitary executive. Before doing that, however, we will take a quick look at some recent scholarship that may shape the Supreme Court’s perspective on such reforms.