My thanks to my three interlocutors on the important issue of the Constitution and the unitary executive, Andy Smarick, John Yoo, and Keven Frazier. As I wrote, the theory of the unitary executive asserts that “the president has authority to direct all parts of the executive branch and to fire anyone in the executive branch or, at least, to fire anyone with authority over policy.”
There are, of course, any number of alternative institutional arrangements to the unitary executive; these are reflected currently among various forms of “horizontal” plural executives adopted by US states, but also historical forms of “vertical” plural executives that Alexander Hamilton criticizes particularly in Federalist #71.
I focused my analysis on what I consider to be the most broadly relevant choice of executive form today: On the one hand, the national government continues with the current system that recognizes [a] “independent executive agencies” that are immune from formal and continuing presidential direction and removal authority, and [b] provides merit protection to numerous executive employees who influence policy, thereby immunizing them from the direction of the electorally accountable chief executive. The alternative would be recognition that the US Constitution does not allow statutory creation of a horizontally plural executive (in the form of independent executive agencies) nor a vertically plural executive (in the form of judicial review of the cause for which a president replaces currently merit-protected executive employees).
I argue that the second of these alternatives is superior to the first in the current context. The problem with the first alternative is not simply the formalism that the US Constitution does not comprehend these statutorily created plural forms of the executive, but that, unlike plural executive arrangements at the state level, these constitutional oddities are immunized from electoral accountability, which is the first guardrail for insuring executive accountability and competence.
At the same time, it merits attention that the doctrine of the unitary executive is a doctrine regarding presidential control of the executive branch only; it does not authorize the president to usurp Congress’s legislative power by executive order, nor does it authorize presidential usurpation of judicial authority by executive creation of ersatz courts.
Bureaucratic developments such as independent executive agencies and merit protection were designed to immunize parts of the executive branch from the political control of the elected head of the executive branch, the president.
What the reformers did not anticipate, however, was that over the decades, as presidents with different electoral mandates came and went, yet the Federal bureaucracy soldiered on as designed, voter frustration would increase with a bureaucracy that proved immune to changing voter and presidential preferences. The relative inelasticity of the Federal bureaucracy to changing political preferences is one cause, I would suggest, of the belief in the existence of the “deep state.” This frustration, in turn, has led in part to increasing belief reported in surveys among many Americans, particularly those on the right, that the country needs a “strong leader who is willing to break the rules.”
The problem, however, isn’t aristocratic expertise, it’s that aristocrats aim at a different bullseye than do democratically accountable officials.
What critics overlook in their concern for American democracy in the face of a desire for a strong leader is that the initial anti-democratic move, the move that prompted the present populist reaction, was the move to immunize wide swaths of the American national bureaucracy from electoral accountability.
Let me touch on a few items discussed by my interlocutors.
The Unitary Executive Reduces Informational Costs for Voters
Kevin Frazier and I agree on the criteria by which to judge the choice between the status quo bureaucracy, with independent executive agencies and vast numbers of merit-protected employees who influence policy. The irony is that a unitary executive would accomplish the goals he stipulates better than the status quo does.
Frazier writes,
Rogers … works from an idealized conception of voter capacity that assumes citizens possess sufficient information, political knowledge, and civic motivation to fist identify the responsible governmental actors and then translate that assessment into electoral consequences.
The irony is that my argument assumed the opposite of this; my argument—Hamilton’s argument, actually—was that by simplifying institutional structure, a unitary executive reduces information costs for voters and, as a result, improves accountability.
Consider the two most relevant institutional alternatives. One in which a single national-level elected executive—the president—is responsible for the entire executive branch. The other institutional alternative is the status quo, in which there exists a welter of independent regulatory agencies largely immune from presidential control and, in regular branches of the national bureaucracy, most of the staff are merit-protected. This means they remain protected from presidential control.
Frazier argues that “complex lines of authority remain obscured.” That is exactly right. But which institutional mechanism is the more complicated? One can read the answer off from the name itself. A “unitary” executive is obviously the less complex; the alphabet soup of independent agencies and the inelasticity of agency outcomes to changes in presidential administration mean that the status quo is the more complex institutional arrangement.
Frazier next raises the obvious issue of bureaucratic expertise and hierarchical control. This, of course, is an important issue, and a traditional argument for the move from the old patronage system to the current system of protected employment.
The answer requires that we weigh the interest in democratic accountability relative to the interest in expertise.
An analogy might help. In Democracy in America, Alexis de Tocqueville observes similarly to Frazier that “the laws of American democracy are often defective or incomplete; sometimes they violate vested rights or ratify dangerous ones.”
In an eerie parallel to Frazier’s argument, Tocqueville observes that aristocratic governance provides expertise at crafting and implementing policy:
Aristocracy is infinitely more skillful in the science of the legislature than democracy is capable of being. Master of itself, it is not subject to transient impulses; it has long-term goals which it knows how to mature until the favorable opportunity presents itself. Aristocracy proceeds skillfully; it knows the art of making the collective force of all its laws converge at the same time toward the same point. It is not the same with democracy: its laws are almost always defective or ill-timed.
Despite the advantages of aristocratic governance, however, Tocqueville concludes that “democratic government, despite its faults, is still the most suitable of all to make this society prosper.”
Why is that? It’s a matter of what target each group of policymakers aims at. Educated, expert Aristocrats hit the target they aim at with less variance than democratic policymakers. The problem, however, isn’t aristocratic expertise; it’s that aristocrats aim at a different bullseye than do democratically accountable officials. While democratic officials have a much greater spread around the policy target at which they aim, the center of mass is the bullseye preferred by current voters.
To be sure, there is a cost to the loss of bureaucratic expertise. But observing one side of the argument does not mean that realizing a greater alignment of bureaucratic outcomes with democratic outcomes is not worth the cost.
Institutional Choice Beyond My Two Choices
Andy Smarick wants to push beyond the two alternatives I discuss. He writes that the “more interesting question … is whether there are other legitimate systems that are as good or even better than the unitary executive at responding to America’s unique characteristics.”
In particular, Smarick makes a nod toward state-level plural executives and concludes that “the plural executive’s messiness and inefficiency might well be a natural antidote to populism.”
I don’t disagree. I focused on a unitary executive versus the status quo, mainly for tractability in a short essay. If the Supreme Court were to declare congressional statutes that create a plural executive an unconstitutional infringement on executive authority, we would revert to a form of the unitary executive. Nonetheless, I am open to the possibility that the type of horizontally partitioned plural executives that states have, with separately elected executive heads, could be usefully adopted at the national level. It would take a constitutional amendment, however.
Scalia did not share Yoo’s belief that the Constitution only makes “narrow” exceptions to executive power in foreign policy.
That said, there remains a question of the informational complexity of state-level plural executives. That is, whether the proliferation of executives decreases democratic accountability relative to a simpler executive structure. The institutional heterogeneity across the states might be able to give legal and political scholars some empirical leverage on the question of whether increasing the number of horizontally partitioned executives confuses voters relative to fewer executives.
Directing Bureaucratic Agencies & Foreign Policy
John Yoo curiously asserts that “Rogers defines unitary executive … as only extending to the president’s constitutional right to remove inferior officers.” It’s curious because I repeatedly provide a more expansive definition of the institution.
Early on in my initial essay, I define the unitary executive as the institution in which “the president has authority to direct all parts of the executive branch and to fire anyone in the executive branch or, at least, to fire anyone with authority over policy.” I later refer to the unitary executive as placing the “entire” executive branch under the “immediate direction and oversight by the president,” as “presidential authority to direct policy outcomes,” and I note twice that the plural executive form—the antonym of the unitary executive—places executive officers beyond the “direction and control” of the chief executive.
And as the events that gave rise to Humphrey’s Executor demonstrate, the authority to direct the executive branch is predicated on the removal power: The president’s removal power is the inducement for executive branch employees to follow the president’s direction. To be sure, the president cannot exercise power the Constitution delegates to the legislative or judicial branches, but that is different than recognizing that the Constitution generally confers presidential authority over the executive branch.
Yoo is particularly concerned about the president’s authority over foreign policy. He writes, “At the time of the Constitution’s framing, executive power was also understood to include the war, treaty, and other general foreign affairs powers.” However true that may be, the Constitution has more to say than can be deduced merely from interrogating the word “executive” in the abstract.
But here, Yoo’s expansive argument regarding foreign policy ironically runs into Justice Scalia.
Despite Scalia’s full-throated endorsement of the unitary executive in Morrison (Scalia wrote that the Constitution does not accord the president only “some of the executive power, but all of the executive power”) Scalia did not share Yoo’s belief that the Constitution only makes “narrow” exceptions to executive power in foreign policy.
In dissent in Zivotofsky v. Kerry, for example, Scalia wrote:
It turns the Constitution upside-down to suggest that in areas of shared [congressional and presidential] authority, it is the executive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President’s powers, but the President must “take Care” that Congress’s legislation “be faithfully executed.” And Acts of Congress made in pursuance of the Constitution are the “supreme Law of the Land”; acts of the President (apart from treaties) are not. (Emphases in original.)
Scalia concluded his argument in Zivotofsky with the warning that the Court’s majority opinion “threatens congressional power over foreign affairs with gradual erosion.”
This is not to suggest that the president has narrow executive authority in foreign policy. The majority opinions in cases such as United States v. Curtiss-Wright Export Corp. (1936) and Zivotofsky v. Kerry (2015) demonstrate otherwise. Nonetheless, the president’s executive authority over foreign policy must be construed in light of the whole Constitution.
I think the greater practical challenge to the Constitution’s theory of executive power is found not in limitations on the president’s authority over foreign policy, but in congressional legislation that has statutorily created a plural executive. The statutory creation of a “fourth branch” of the US government represents a congressional usurpation of executive authority and, substantively, has resulted in a diminution of democratic accountability over the national government’s burgeoning administrative state.