At Law & Liberty, John O. McGinnis: The Pragmatic Case for a Unitary Executive. From the introduction:
The theory of the unitary executive is gaining traction in American law. That view of the Constitution asserts that the president controls whatever power is given to the executive branch of the federal government. As a result, the president must be able to dismiss his subordinate executives at will. Otherwise, these officials will be responsive to others or to themselves, not to the chief executive.
The unitary executive is persistently, sometimes willfully, confused with the notion that the president enjoys large residual constitutional powers. But the scope of presidential powers is distinct from the control over whatever those powers are. As Justice Samuel Alito said at his confirmation hearing, the first question “is the scope of Executive power: [W]e might think of that as how big is this table, the extent of the Executive powers.” That was distinct from a different question, “[W]hen you have a power that is within the prerogative of the Executive, who controls [it]?” The unitary executive is concerned only with the second question.
A majority of the Supreme Court justices now accept the essence of the originalist case for the unitary executive. This term in Seila Law v. Consumer Financial Protection Bureau, the Court held that insulating the director of the CFPB from presidential removal was unconstitutional because it offended the separation of powers, saying bluntly, “The President’s Executive Power generally includes the power to supervise—and if necessary remove—those who exercise the President’s power on his behalf.” While the Court did not overrule previous cases that had upheld statutory insulations of executive officials from presidential removal, it narrowly confined their ambit, raising questions about whether they might be overruled in the future.
The originalist case for the unitary executive was powerfully made in Seila and in the academic work of my colleague, Steven Calabresi. But there is also a more pragmatic case for the unitary executive that should help persuade the non-originalist justices who were in dissent in Seila. First, in the modern world, almost all matters in which the federal government is involved have foreign policy implications. For instance, the greatest threat to the United States is the continuing rise of Communist China. To counter this threat, the United States must muster all its military, economic, and technological might. Such a total commitment involves the work of essentially all agencies of government. And it is the president who must be responsible for the executive’s foreign policy decisions because he alone has a broader perspective and intelligence tools available to protect the nation and navigate international relationships.
Posted at 6:32 AM