The Unitary Executive: Past, Present, Future
Journal Article: The Unitary Executive: Past, Present, Future
Journal: The Supreme Court Review. The Supreme Court Review (SCR) has won acclaim for providing a sustained and authoritative survey of the implications of the Court's most significant decisions. SCR is an in-depth annual critique of the Supreme Court and its work, keeping up on the forefront of the origins, reforms, and interpretations of American law. SCR is written by and for legal academics, judges, political scientists, journalists, historians, economists, policy planners, and sociologists. SCR can be found here.
Date of Publication: 2020
Author: Cass R. Sunstein and Adrian Vermeule. Sunstein is the Robert Walmsley University Professor at Harvard Law School. More on Sunstein can be found here and here. Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School. More on Vermeule can be found here and here.
How to Cite: Sunstein, C.R.; Vermeule, A. The Unitary Executive Theory: Past, Present, Future, The Supreme Court Review Volume 2020 (1), pp. 83-117. https://doi.org/10.1086/714860
Introduction: It is a bracingly simple idea.
Article II, section 1 of the U.S. Constitution vests the executive power in “a president of the United States.” Those words do not seem ambiguous. Under the Constitution, the President, and no one else, has executive power. The executive is therefore “unitary.” It follows, as the night follows the day, that Congress lacks the power to carve up the executive—to say, for example, that the Secretary of Transportation is a free agent, immune from presidential control, or that the Secretary of Commerce can maintain their job unless the President is able to establish some kind of “cause” for removing them.
On this view, the Supreme Court’s unambiguous embrace of the idea of the unitary executive in Myers v. United States was a golden moment in constitutional law, a ruling on which diverse people ought to be able to agree, and indeed one that they should enthusiastically embrace. And on this view, the Court’s messy, confusing, neologism-based, indefensible rejection of the unitary executive in Humphrey’s Executor v. Federal Trade Commission,4 upholding the independence of the Federal Trade Commission, was a dark stain, one of the lowest moments in the Court’s history and a prime candidate for inclusion in the “anticanon” of constitutional law. If that is so, the only serious question in the removal debate, for many decades, has been simple: Should Humphrey’s Executor be flatly overruled, or should it be confined as much as possible simply in deference to a longstanding precedent on which much of American government has been built?
The text of the article can be found here, and a downloadable PDF version can be found here.
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