2021/11/01 by Cass R. Sunstein, Adrian Vermeule · 1 voice · 3 citations
Mathematics · Health Professions · Social Sciences · #Education, Psychology, and Complexity Research #Medical Malpractice and Liability Issues #Jury Decision Making Processes
paper · doi:10.1086/714860
openalex publication_date 2021/11/01 · openalex created_date 2025/10/10 · openalex updated_date 2026/07/31
Previous articleNext article FreeThe Unitary Executive: Past, Present, FutureCass R. Sunstein and Adrian VermeuleCass R. Sunstein and Adrian VermeulePDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreI. A Bracingly Simple IdeaIt 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."1 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.2On this view, the Supreme Court's unambiguous embrace of the idea of the unitary executive in Myers v. United States3 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?A. Minimalism and MaximalismIn Seila Law LLC v. Consumer Financial Protection Bureau,5 the Court invalidated the provision guaranteeing that the Director of the CFPB could not be removed by the President except for cause. But the Court did not overrule Humphrey's Executor; it distinguished it, confining it to its facts. The resulting opinion, however, is deeply ambiguous, because it is not obvious what the legally relevant description of Humphrey's Executor should now be taken to be.On one reading, which we will call the "minimalist reading," the Court's opinion might be read to say: "We have made some mistakes in the past, and we may or may not overrule them, but if we can find any minimally plausible ground for distinguishing them, that is exactly what we will do." On this view, the Court distinguished Humphrey's Executor principally on the ground that the CFPB is headed by a single person, not a multimember commission, along the lines of then-Judge Kavanaugh's earlier opinion for a D.C. Circuit panel.6 In simpler words: "Go forth, and sin no more."But in fact, there are significant strands of the Court's opinion that seem far more ambitious; call these "the maximalist reading." This reading arises because the Court repeatedly described the exception derived from Humphrey's Executor as not extending to independent agencies that exercise significant executive power, as by rulemaking or enforcement in internal agency proceedings. In a crucial passage, the Court said that the baseline rule of Myers, granting the President at-will removal authority for all officers exercising executive power, is subject to "two exceptions—one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority."7 The Court continued that these two exceptions "represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President's removal power"8 and refused to expand or add to them. Justice Thomas, who joined the majority opinion in relevant part, also wrote a separate opinion, joined by Justice Gorsuch, saying unambiguously that Humphrey's Executor was wrong and that he would overrule it.9 In his words, "Humphrey's Executor does not comport with the Constitution."10The maximalist reading, if pursued in future cases, would effect radical changes in administrative law and indeed the fabric of modern government. The main independent agencies with multiple heads wield broad rulemaking and enforcement powers; the Court's ruling thus casts a legal cloud over the removal provisions for the commissioners and heads of the FTC, the FCC, the SEC, the NRC, the NLRB, and others. The constitutionality of those removal provisions would seem to depend on what, particularly, those agencies are authorized to do. Whether the maximalist reading is in fact pursued depends on many contingencies, but it is nonetheless significant that the Court read Humphrey's Executor so narrowly that it might well be taken to have thrown the independence of most of the current independent agencies, and longstanding understandings of that decision, into grave doubt.B. Originalism and DworkinismThere is also a major methodological ambiguity in Seila Law. Some of its defenders are likely to understand the ruling as a clear vindication of the Constitution itself, understood in terms of the original understanding of the text. Indeed, we predict that the decision will be taken as an originalist triumph and in two different ways: as an enthusiastic embrace of originalism as the proper method of constitutional interpretation and as an unquestionably proper use of originalism. Seila Law might even take its place with District of Columbia v. Heller11 as a defining example of originalism at work and as a vindication of that method.We shall explore that possibility and raise some doubts about it. Taken in purely originalist terms, the decision might or might not be correct. For our purposes, the more fundamental point is that in our view, the Court's opinion is not only, or not principally, an originalist one. The Court does not refer to the "original public meaning," as many originalists do, and it does not work hard with the text and the history to show that in 1789, a widely shared understanding of the executive power would compel its conclusion. Indeed, there are major nonoriginalist strands to the opinion. To put things in slightly provocative terms, one might even call the majority's opinion frankly Dworkinian, in the sense that it rests on an effort to put the existing fabric of law in the best constructive light by reference to considerations of political morality.12In that respect, Seila Law can be illuminatingly understood as a form of constitutional common law13 and as responsive to emphatically contemporary concerns. The decision reflects anxiety about the powers of unaccountable bureaucrats freed from the constraining arm of the President (and hence We the People). Even while confining Humphrey's Executor to its facts, it appeals throughout to high-level principles, such as "liberty" and "accountability," to decide which of those facts are legally relevant. Is the number of agency heads, one versus many, relevant? The Court sometimes says it is not only relevant, but crucial; elsewhere, as we have described, the Court's focus is on whether agencies wield executive power. The important thing is that on the terms of the Court's own analysis, emphasizing those high-level principles—that is, which features of the history and caselaw are critical—is not simply read off from any previous precedent or from the original understanding. Rather, the Court arrives at its conclusions through high-level structural reasoning from what it sees as defining constitutional principles, and it expressly defends that structural reasoning as such.14In other words, the conclusion and the analysis in Seila Law are rooted in large part in rich interpretations of abstract, contested principles of self-government and liberty. That is why the decision can be understood not only in originalist terms but also as a species of constitutional common law, or, more precisely, as a reflection of Dworkin's notion of law as "integrity," by which judges attempt both to "fit" existing legal materials and to "justify" them by making them the best that they can be.15 So understood, Seila Law is an exercise in fit, and an unusually creative one; it is also an exercise in justification, and an especially bold one.In what follows, we explore these two ambiguities about the opinion, which involve respectively the scope of its holding and its methodology. Our exposition comes in four parts. Part II explores the idea of a unitary executive with reference to text and history and also with reference to changed circumstances. We attempt to show the ambiguities in the founding era that gave rise to reasonable, competing understandings of what was and was not settled. We also attempt to show that the emergence of the modern administrative state can be taken both to fortify and to undermine the argument for the idea of a strongly unitary executive. Part III discusses the Court's disparate, inconclusive encounters with that idea. Part IV turns to Seila Law and its striking treatment of Humphrey's Executor, which it simultaneously preserves (for now) and perhaps hollows out, thus endangering many contemporary independent agencies. Part V discusses implications and constitutional method, showing that the decision rests crucially on contested normatively laden views about the meaning of high-level principles. In the end, Seila Law is best seen as part of a much broader effort, in prominent circles, to constrain the operation of the regulatory state in general and of apparently unaccountable institutions in particular by referencing a distinctive understanding of constitutional principles.II. Two Kinds of UnitarinessIn a sense, everyone agrees that the Constitution creates a "unitary executive."16 There is one President, not an executive council, and the President is broadly in charge of the executive branch. But reasonable people strenuously disagree about what a unitary President entails.17 We begin by distinguishing two ways of thinking about the unitary executive and then we turn, respectively, to originalist and nonoriginalist disputes about which way is best. The result is a map with four possible positions.A. Strong and WeakSome people believe in a strongly unitary presidency; others believe in a weakly unitary presidency. The former insist that at a minimum, the President has the constitutional authority to remove all noninferior policymaking officials who exercise executive power (and also to control their decisions).18 On this view, the executive power is the President's alone, and any congressional effort to compromise that principle by limiting the President's ability to fire executive branch officials is forbidden. All those who implement the law, including all those who exercise administrative authority, must be controlled by the President, at least in the sense of being at-will employees.19 The Court's opinion in Seila Law seems to embrace this view, certainly as a matter of constitutional text and history.By contrast, those who believe in a weakly unitary presidency insist that under the Necessary and Proper Clause, Congress has significant authority to limit the President's authority of removal (and also supervision).20 They are likely to agree that with respect to some executive officers—the Secretary of Defense, the Secretary of State, the Attorney General—the President must have plenary removal authority. The President must have that authority where specific constitutional texts that make grants of power to the President, such as the Commander-in-Chief Clause, are implicated, and where tradition holds that core executive powers and prerogatives involving war, diplomacy, and foreign affairs are at issue. But they also believe that as a general matter, Congress has considerable room to structure the administrative state as it sees fit, especially where tradition suggests that agency independence is essential, as with respect to agencies that engage in financial regulation.21 Justice Kagan's dissenting opinion in Seila Law embraces this position.22Those who believe in a weakly unitary executive insist that Congress is able to immunize adjudicative officers from presidential control23; they add that some administrative functions might be exercised by people who are not subject to the President's policy preferences.24 They believe that multiple authorities, including rulemaking and even prosecution, might be taken out of plenary presidential control so long as doing so does not prevent the President from exercising constitutionally specified functions, defined not broadly to mean control of all executive or administrative powers but more narrowly to include specific ones, such as the Commander-in-Chief power.25 Of course it is true that those who believe in a weakly unitary executive have to do considerable work to spell out what their position particularly entails. The general point is that under the Necessary and Proper Clause, Congress is permitted to carve out some important functions from presidential control.Some participants in these debates speak in originalist terms; others do not.26 We can therefore identify four positions: OriginalistNon-OriginalistStrongly unitary(1)(2)Weakly unitary(3)(4) View Table Image B. Text and History1. Strongly unitary: the original meaningSeeking to uncover the original public meaning of the founding document, those in Cell (1) begin with the text.27 Article II vests the executive power in "a President of the United States."28 It also grants the President the power to "take Care that the Laws be faithfully executed."29 On one view, these terms are exceedingly clear.30 They demonstrate that the President, and no one else, is in charge of execution of the laws. Invoking history, those in Cell (1) add that the contemporaneous debates show that the strongly unitary view reflects the original public meaning.31 In their view, those debates demonstrate that the framers and ratifiers sought to ensure that the executive branch would be accountable, coordinated, and energetic.32 The concentration of the relevant authorities in a single person was deemed necessary to achieve those goals. On this view, the original public meaning of the constitutional text compels Cell (1).Cell (1) is often thought to have compelling structural justifications, as emphasized in the founding period. As Hamilton put it in The Federalist No. 70: "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number."33 In addition, "one of the weightiest objections to a plurality in the executive … is that it tends to conceal faults, and destroy responsibility."34 A unitary executive is more clearly subject to the people and therefore well-suited to a self-governing nation. If Congress were authorized to divide the executive power—for example, by creating independent officials charged with implementing important aspects of federal law—all of the Constitution's structural commitments, as specified by Hamilton, would be gravely undermined.If there were any doubts (the Cell (1) view asserts), the Decision of 1789, as it is called, resolves them.35 In that year, an early Congress debated the President's removal power and the unitariness of the executive at great length in the context of determining the legal relationship between early cabinet heads (Treasury, War, and Foreign Affairs) and the President.36 Various views were represented in that debate, but Congress ultimately concluded that, by Constitutional compulsion, those who execute the laws must be at-will employees of the President, at least if they work at sufficiently high levels.37 That conclusion, clearly emerging from the historical materials, is, on this view, authoritative with respect to the original public meaning of the Constitution.382. Weakly unitary: the original public meaningThose in Cell (3) respond either that the text is murky and inconclusive or that it rejects the strongly unitary view.39 In their view, the original understanding does not call for Cell (1). With respect to the text itself, Justice Holmes put it briskly but memorably: "The arguments drawn from the executive power of the President, and from his duty to appoint officers of the United States (when Congress does not vest the appointment elsewhere), to take care that the laws be faithfully executed, and to commission all officers of the United States, seem to me spider's webs inadequate to control the dominant facts."40 Justice Holmes did not spell that out, but on one view, the vesting of executive power in a President says essentially nothing about Congress' capacity to insulate certain officials from presidential control. (It is a spider's web.) The general idea that there is one President, and the general idea that the President has the executive power, need not be taken to resolve the specific question whether Congress can declare that some officials, executing the laws, are not his at-will employees.If this proposition seems puzzling or provocative, those in Cell (3) add that tellingly, Hamilton himself, a strong believer in a unitary executive, specifically rejected Cell (1) in The Federalist and concluded that the removal power followed from the Appointments Clause. In his view, that meant that officials who were subject to advice and consent for their appointment could be made removable only with the consent of the Senate.41 In his words, "the consent of [the Senate] would be necessary to displace as well as to appoint."42 Remarkably, he added this, in a passage that is much less well-known than it ought to be:A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had of his for it, a President would be from a change in of a person more to by the that a of the might the and some degree of Those who can best the of a will be most to a provision which the of public with the or of that from the greater of its own will in all be less subject to than any other of the the is not that Hamilton had the original public meaning It is only that the vesting of the executive power in the President, by itself, need not be taken to resolve the question at views would seem to be on that particular a strong point in of that the relevant words of the constitutional text are webs inadequate to control the dominant conclusion holds for the Care can agree that the President is authorized and to execute the laws faithfully while also that Congress has the capacity to immunize some officials from the President's plenary control. The duty of execution need not the conclusion that the President can officials in the President's On one view, the laws that limit their power to do that must be faithfully In any the can be taken as a of a in the not to the particular question whether Congress can limit the President's removal power. views are relevant as Hamilton had no with the Care Clause, but he also that Congress could removal of cabinet officials on the advice and consent of the in this the in "The President … may the in of the in of the executive any to the of their On one view, this is hard the strongly unitary view, taken as an originalist If the President is in control of the of all those who federal law, why would the framers and ratifiers it necessary to this particular The question might be taken to be the in many and can be understood in different it some work to it with the strongly unitary view of the for history, the Decision of a of competing with the strongly unitary The debates were and more so than they might Those and the Decision itself, could be read in different It would be possible to read them as the proposition that the strongly unitary view is constitutionally and as a congressional not by the Constitution, to removal authority over particular a of the for example, to "the of the Decision of and majority of the Congress the powers by unitary … On whether the president had removal power, the Congress view, also on a analysis of the there was no clear Decision of that the question whether Article II a strongly or weakly unitary executive. On that view, "the was not as as would The by which the removal was only a precedent in of the constitutional removal that any if it even as War, and particular functions might be thought to be essentially from the President's If so, the Decision of might have no on congressional to immunize from presidential control the of agencies with other of the Federal the and Commission, the the and the Even if there was a Decision of 1789, it might not speak to the question whether Congress can immunize those agencies, and from plenary presidential removal addition, prominent legal have read both and the founding era as an of the weakly unitary view, at least in some Some have that some heads as the of and must be subject to presidential control, so that the President can exercise their own constitutional authority but that others need not and that the Necessary and Proper Congress considerable to decide on the of authority between the President and the administrative Those in Cell (3) can insist that their in Cell (1) out to be by emphatically and say, and while a clear constitutional that in fact, be to the original understanding and the founding many people are not They do not believe that the original public understanding is They to the of but they insist that structural principles and changed longstanding the views of Congress and the President, and or emerging are a part of constitutional part of the meaning is best the context at the rise of the modern administrative an might be taken to nonoriginalist to of powers can of course take diverse In the context at one form constitutional common form to understand the Constitution's in that the founding could not have by suggests that constitutional interpretation judges to put the existing legal materials in the best constructive can be seen as an exercise in constitutional common law in or in The idea is that in a in which the executive branch is power that so many of the founding to and call for strong even if those authorized unitariness two It is one thing to that in Congress had the constitutional authority to immunize certain agencies and not so fundamental to from plenary presidential control. It is to that Congress can carve out an of crucial agencies the in multiple such as the Federal Commission, the Federal Trade Commission, the Commission, and the and them do their work control from the constitutionally specified of the laws. In the modern to constitutional for on presidential even if it did not do that in the founding the administrative state was so much and less to is true that this to constitutional interpretation might seem and more than that the But because many of constitutional law have with emerging from the we might to insist that to the most founding commitments, as to particular understandings and is an way to engage in constitutional And if we to those commitments, strong presidential of the administrative including agencies now as might seem if we are to to the principles by Hamilton in of a unitary conclusion, by those in Cell is that even if the founding did not believe that a strongly unitary presidency was necessary to their own commitments, such a presidency is necessary the and of the contemporary administrative Those in Cell that those in Cell (1) do not have the original understanding But for of they are to make common with comes from Cell Cell it exactly If is the perhaps we should the of power and the of and the need to Congress to have some the of that rise to agencies. the by changed is the capacity of one person, on their to the government in their It should not be necessary to that that capacity is to founding it the of As put it in a of expert administrative administrative is, in our to the of the and the It our effort to find an to those by some other method than executive power. If the of the of power it also and for The of administrative power may be the for the of that so that it may seem in of the of the of power, it may in matter of fact be the for the of the of that as it in a modern of Cell we of power to the President, then to the that our must also some not congressional at presidential what might be into a If executive power is in the President, and if they are able to now in the broad of