Sunday, November 30, 2008
Professor Richard Pierce, Jr. (Geo. Washington), recently posted Saving the Unitary Executive Theory From Those Who Would Distort and Abuse It: A Review of The Unitary Executive, by Steven G. Calabresi and Christopher Yoo on ssrn. The piece is forthcoming in the Penn Journal of Constitutional Law.
I came across Pierce's review soon after I finished Calabresi and Yoo's book. It seems odd to blog on a review--a kind of review of a review--but Pierce adds plenty to Calabresi and Yoo's work. And as a leading admin scholar, he complements the book well, adding a needed dose of political reality to the constitutional theory. His "review" is really more a response--and a good one. I highly recommend Pierce's review (and, oh yes, the book).
Pierce starts by acknowledging Calabresi and Yoo's important contributions to the literature on unitary executive theory. First, they "rescue" it from the Bush administration, which has used it "to support outlandish claims of presidential power that are unrelated to the unitary executive theory." Calabresi and Yoo reground the unitary executive in the President's power over the executive branch. Pierce: "the Vesting Clause of Article II confers on the President plenary power over policy making by all Executive Branch agencies and officials." Second, they trace the unitary executive theory across presidents from Washington to George W. Bush and argue that all forty-three presidents acted in accordance with it.
Here's where Pierce's piece becomes more an important response and complement to the book than merely a review of it.
Pierce sets out three disagreements with Calabresi and Yoo. First, he argues that the President does not have the power "to veto a decision made by an executive officer to whom Congress has delegated the decision." Instead, the President's "only recourse is to remove the officer." Pierce:
I believe instead that, when Congress has lawfully vested decision making power in an executive branch officer, e.g., the Secretary of Health and Human Services or the EPA Administrator, that executive branch officer is the only person who can make the decision.
Moreover, removal will rarely be necessary, because executive officers have good political reasons, entirely independent of the removal power, to act in accordance with the President's policy preferences. And removal will often be unduly costly:
The difference between the power to veto and the power to remove is not subtle. If a President could veto a decision of an executive branch officer, he undoubtedly would do so with some frequency and often at little political cost. By contrast, removing an officer is always costly. Frequently, the cost of removal is so high that a President reluctantly acquiesces in a decision with which he strongly disagrees in order to avoid incurring the high cost of removing the executive branch officer who made the decision.
Thus politics often obviates the need for removal; and in any event removal is limited by politics.
Second, Pierce argues that statutory "for cause" limits on the President's removal power do not infringe upon the unitary executive. In fact, they are "not important." Why? As mentioned above, officers have independent political reasons to act in accordance with the President's policy preferences, thus making removal largely unnecessary. Pierce:
[Even o]n the unusual occasion when an officer feels so strongly about a policy issue that the president is unable to persuade the officer to act in accordance with the president's policy preferences, I do not believe that the legal requirement that the president must state a cause for removing the officer has any effect at all on the president's ability to use the threat of removal as an added inducement to the officer to act in accordance with the president's policy preferences.
As for broad statutory limits on the removal of employees: They don't matter to the President's ability to control policy, because employees don't make policy.
Finally, Pierce argues that the only constitutional problem with independent agencies is the statutory limit on the President's appointment power, not the "for cause" limit on the removal power:
The statutes that establish "independent agencies" limit the president's appointment power by providing that no more than a bare majority of the Commissioners can be members of the same political party.
Read Pierce's review along with the book; it's a healthy complement and valuable critique.