The Unitary Executive
Notes on how people know things
How do you know what you know? How do we come to settle on a view about history? About World War II? About our country? About the founding?
I have been working on the Unitary Executive for over 40 years, and have seen discussions of the idea in the Department of Justice (in the early 1980s), in the White House (from 2009 to 2012), and in the law reviews. There’s a pretty amazing story to be told about how the Unitary Executive moved from the relative margins to the dead center of constitutional understandings.
Here are a few glimpses.
In the late 1970s, the President’s control over the administrative apparatus was not exactly the liveliest issue in the legal world.
In Myers (1926), the Court established that the President has broad removal authority. In Humphrey’s Executor (1935), the Court established that Congress could create independent agencies. Sure, there were plenty of open questions, but the independent status of the FTC, the FCC, the NLRB, the SEC, and so forth was fundamentally secure. People did not think that the Supreme Court would revisit the issue, at least not in the foreseeable future.
I worked at the Office of Legal Counsel during President Reagan’s first year, and the consensus at OLC was that Myers was right, a shining constitutional star, and that Humphrey’s Executor was wrong, a constitutional disaster area. Just read Art. II of the Constitution! We were clear on this.
I was a young civil servant a the time, not a political appointee, but the political appointees were even more emphatic. (A young lawyer named John Roberts was in DOJ in the early 1980s, and so was a young lawyer named Sam Alito.)
In retrospect, we participated in a classic process of group polarization, whether we were right or wrong: Within the executive branch, our discussions with one another led us to be more unified, more confident, and more extreme in our commitment to a Unitary Executive.
We all thought that the matter was 100% obvious: Humphrey’s Executor was inconsistent with the text of the Constitution. It was also inconsistent with the original public meaning.
To be sure, originalism was hardly dominant in the Supreme Court, and we were not all originalists (I wasn’t)., but we thought that all roads led to Rome, and Rome was the land of the Unitary Executive. I cannot overstate how clear we were on all this. (I want to put that in italics or bold, but I am refraining. For now.)
Geof Miller, who worked at OLC with me, wrote a paper that pretty well captured our view: https://www.jstor.org/stable/pdf/3109519.pdf. Several of us wrote papers to the same effect; the ones I remember (including one of my own) were never published.
Back in the 1980s, our convictions were clear, and we did know some things, but our knowledge was woefully inadequate. Not to put too fine a point on it, but we didn’t know much. I now think of our combination of 1) immense confidence and 2) inadequate knowledge with a combination of amusement and embarrassment.
Note well: the contemporary insistence on the Unitary Executive was born in that period. More: People in the early 1980s got clear on the matter, and some of them are now in positions of power, and they are at least as clear on the matter now as they were then.
Back in the early 1980s, we thought that the vesting of executive power in a President of the United States essentially resolved the question. We thought that the Take Care Clause also resolved the question. We thought that the Decision of 1789 also resolved the question. We thought that while some questions are hard, the shining correctness of Myers, and the egregious wrongness of Humphrey’s Executor, were essentially self-evident.
In the last 20 years, and especially in the last 10, the Unitary Executive, as we understood and defended it in the 1980s, has come under a lot of pressure. It has taken a battering. Actually it looks as if we might well have had (probably had?) the Constitution wrong. https://scholarship.law.upenn.edu/penn_law_review/vol171/iss3/2/
In a nutshell: The text of the Constitution does not, in fact, resolve the matter. The Vesting Clause is indeterminate. So is the Take Care Clause. It looks as if the Decision of 1789 probably goes the other way; the Unitary Executive did not command majority support in Congress. Early practices may or may not resolve the matter, but there are reasonable arguments that they reject the Unitary Executive. https://scholarship.law.nd.edu/ndlr/vol98/iss1/3/
My goal here is not to say who is right, or to say what the Supreme Court should do in current cases that test the President’s authority over the independent agencies.
Let us instead marvel over this: the emergence, starting in the 1980s, of a view that was held with supreme confidence by a group of (mostly) young lawyers, but that was patently inconsistent with settled law — and that is now on the verge of being accepted by the Supreme Court of the United States.