The unitary executive needs a legislative counterweight

In recent years, the conservative majority of the Supreme Court have been adopting a controversial legal theory called "the unitary executive," which posits that the president alone must control all activities of the executive branch. Supporters of this theory root it in the foundational constitutional values of political accountability; a value grounded in the acknowledgement in the Declaration of Independence that governments derive "their just power from the consent of the governed." Opponents argue that the unitary executive is in tension with another foundational value, that of avoiding the concentration of unchecked power. This is the value that underlies the separation of powers and checks and balances framework embedded in the text of the Constitution. 

This term, in the service of a unitary executive, the Supreme Court is expected to overrule Humphrey's Executor, the case that permits Congress to create independent agencies by denying the Executive the power to fire the commissioners who run such agencies simply because of policy disagreements. This doctrinal reversal arguably furthers the value of political accountability because independent agencies, once constituted, are not subject to conventional electoral review of their policy judgements. The president under this theory is a political actor subject to electoral sanctions. And the power to fire commissioners who deviate from the president's political agenda effectively place these agencies under the president's control, and so under voters' control. 

The idea that subordinating the so-called independent agencies to presidential control furthers political accountability can be overstated. Presidents, for example, are not judged on single actions but on broader judgments about their effectiveness, and in any event are not exposed to direct electoral repercussions at all during their second term in office. Still, independent agencies, as currently constituted by design and operation are free from political control. The unitary executive provides more political accountability than currently exists.  

But the cost of the unitary executive to the value of avoiding the concentration of unchecked power is significant. Independent agencies set policy and engage in rule making. These are delegated law-making functions, and they are often exercised in politically delicate areas such as regulating financial markets or the media. The creation of the agencies and the delegation of law-making power to them reflected the reality that Congress on its own lacked the time and expertise necessary to develop and evaluate complex legislative responses to the difficult and intricate problems confronting a modern society. If previously independent agencies are now subject to the control of the president, these law-making powers and functions would come completely under the control of the president, which would result in a substantial increase in the concentration of power. 

To partially respond to this disequilibrium and to restore some of Congress' status as a co-equal branch of the national government, the statute we propose would authorize the creation of advisory independent legislative agencies tasked with developing legislation to be submitted to Congress for review and (if approved) enactment. These agencies would have no authority to make rules or apply them in specific contexts. Because their power is purely advisory, they would be subject to the exclusive control of Congress and entirely free from Executive interference, just as the staff of a legislative committee are currently. Further, the statute would provide for direct and timely access to the floor of Congress for consideration of the agencies' legislative submissions.  

More specifically, the statute would provide for the creation by Congress of expert legislative agencies, whose membership would reflect a partisan balance, and who would have access to expert staff. Congress would task such an agency with proposing legislation addressing important and technically complex issues such as permitting reform in the electricity sector, regulating crypto currency, and perhaps regulating social media platforms (within constitutional limits, of course). Agencies would be required to reach a bipartisan, supermajority consensus before formally placing a proposal before Congress. 

As part of our proposal, both houses of Congress would also have to adopt internal rules to ensure that these agency submissions do not die in Committee or fail to secure a vote (as is true of most proposed legislation). The rules would require congressional leaders, after a reasonable time for holding legislative hearings, to bring proposed legislation to the floor for a straightforward up or down vote with no Senate filibuster. If the legislation does pass both Houses, it would then have to be presented to the president for signature or veto. These procedures are modeled on a 1996 statute called the Congressional Review Act, which creates fast-track legislative procedures enabling Congress to vote quickly on whether to override major regulations adopted by administrative agencies.  

There are many issues facing the nation regarding which, we are firmly convinced, it is possible to reach bipartisan consensus on how they should be addressed, if we replaced the current political posturing with a dose of nonpartisan expertise. Our proposal seeks to bring that expertise into the legislative process, while always leaving the final word with our elected representatives in Congress and the White House. As such, it seeks to combine the faith in expertise that drove the original creation of independent regulatory agencies with real political accountability, as opposed to the largely fictional form associated with the "unitary executive." 

Editor's Note: In the aftermath of Watergate, Congress enacted sweeping reforms to restore public trust and strengthen accountability, including campaign finance rules, the creation of the Federal Election Commission, the Ethics in Government Act, and the War Powers Resolution--measures that reshaped the balance of power and continue to shape American governance five decades later.

Against that backdrop, the Daily Journal invited constitutional law professors, legal historians, and good-government advocates--experts in constitutional structure and reform from across the ideological spectrum--to answer a timely question: If Congress were to enact a new round of reforms today, meant to endure for the next 50 years, what one reform would you propose, and why? This is the second installment in a six-part series.