Thursday, February 19, 2009

Where Have All the Unitary Executives Gone?

The NYT reports today that Republicans are furious over Senator Judd Gregg's withdrawal as President Obama's pick for Commerce Secretary, because they believe it signals that the White House intends to "politicize" the 2010 census.

The concern in part relates to sampling, the statistical technique that extrapolates numbers based on actual door-to-door counts and knowledge of uncounted individuals, mostly the poor and racial and ethnic minorities (and mostly Democratic voters).  But the Supreme Court ruled that sampling--at least as the basis for Congressional districting--violated the Census Act (Sec. 195) in the 1999 case Department of Commerce v. United States House.  So the concern about "politicizing" the Census must be based on some other concern.  But what?

More important:  Why?

The Census Bureau is an office within the Department of Commerce; neither the Census Bureau nor the Department is "independent" (as evidenced by the Republicans' furor over Gregg's withdrawal).  Any adherent to the unitary executive theory (like so many Republicans in the Bush II administration) should support, not oppose, White House control, in whatever form that comes.

Moreover, even if the Obama administration intends to take more direct control over the Census Bureau and the 2010 census, this moves seems far more modest an assertion of executive authority than, say, Reagan's executive orders--EO 12291 and EO 12498--to centralize agency rule-making processes through OMB and to direct the substance of that review.  Republicans lauded those moves and even the more recent moves of the Bush II administration sometimes stretching and even abusing the unitary executive theory.

So where have all the unitary executives gone?  With all the attention the theory received in the Bush administration, academic and otherwise, adherents and detractors alike should hope that it's more than just a passing political gambit so that we can debate it on its merits.


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» Whose ox is gored by the "unitary executive" theory now? from Administrative Law Prof Blog
Perhaps our readers can help answer the question posed by Steve Schwinn (John Marshall - Chicago) on the Constitutional Law Prof Blog: Where Have All the Unitary Executives Gone? As he points out, With all the attention the theory received [Read More]

Tracked on Feb 19, 2009 2:47:03 PM


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