Sunday, October 19, 2008
Professor Heidi Kitrosser, University of Minnesota, posted two articles last week on ssrn taking on the accountability justification for the unitary executive theory. The theory, of course, has been subject to quite a bit of academic examination. But Kitrosser's critique--especially and uniquely focusing on the slice of the theory related to political accountability--are well worth a read. I highly recommend this pair of articles.
Kitrosser begins her project with The Accountable Executive. Here she argues that "there is a profound bond between the unitary executive theory and executive branch secrecy," and that secrecy, in turn, undermines accountability. And she goes further: the accountability justification for the unitary executive is undermined if this link is even merely arguable, because "then the argument from accountability simply is not so ironclad as to support a categorical unity directive."
The Bush administration gives us plenty of examples, but Kitrosser focuses on these two: the administration's influence upon EPA's decision to deny California's request for a waiver to exceed federal emissions standards; and the White House efforts to block and manipulate NASA's research on climate change. She persuasively argues that these examples illustrate "the negative correlation between a unitary executive and free information flow, and thus between a unitary executive and accountability." At least, she writes, supporters and opponents of the unitary executive theory "should be able to agree on the importance of clarifying the theory's parameters" in the interest of promoting transparency and accountability.
Kitrosser's second paper, Accountability and Administrative Structure, carries the argument forward in three ways. First, she expands her discussion of executive secrecy and lack of accountability to agency structure and argues that "[s]ome separation of [agency] functions and [agency] zones of independence from politics thus are called for so that the relevant actors (be they courts, Congress, the people, the press, or others) may ascertain what is [agency created] law, what is [agency] expertise, and what is politics . . . ."
Second, she adds critiques of formalist justifications for the unitary executive by arguing original intent: "[The] unitarians' core formalist point--that the Constitution's founders clearly understood the vesting of executive power in the President to entail exclusive power to implement legislative directives and to control others who engage in such tasks--not only is wrong, but is wrong partly because the founders were wary of the accountability risks posed by centralized presidential control."
Finally, she offers two additional and persuasive examples: the administration's rejection of EPA's reaction to Massachusetts v. EPA (and the White House's infamous refusal to open the e-mail) and the centralized OMB coordination of agency rule-making; and the politicization of the DOJ.
These articles are crisp and well argued; Kitrosser's examples are instructive and persuasive. Of course, one has to wonder whether the apparent correlation between the unitary executive and secrecy is necessary, or if it's merely a feature of this administration in the examples she offers. Kitrosser would say that it doesn't matter: That the unitary executive theory can correlate with secrecy is enough to show that accountability is no categorical justification for a unitary executive. She makes a good case. I highly recommend these.