That's always the question with this unitary executive business. They believe this is the government defined by the Constitution, regardless of precedent. Do they believe it is a good system of government? Do they believe this is the government intended or rather the government allowed by legal loophole, vagueness, or contradiction? Because it seems like they think the president should rule like a monarch because they happen to control the presidency at the current moment, not because it is a wise and effective system of government.
It's a fair question to ask "who are independent executive agency heads accountable to" in a constitutional context. It is true that the Executive Branch has grown far beyond what the Founding Fathers could have imagined, but the idea of a unitary executive is that the President is responsible and accountable for everything that happens in the Executive Branch. If the voters don't like what the Executive Branch is doing, they can replace the President in the next election. What happens if voters don't like what independent executive agencies are doing? There's no democratic recourse.
Think of a scenario where a President was elected with a large-ish majority and promised during the campaign to change broadband regulations to reduce broadband prices across the country. Unfortunately, the FCC commissioners were all appointed by the previous president and block this policy change that the voters clearly support. How does that square with democratic accountability?
The problem is that Congress has delegated a lot of its traditional law making power to the Executive Branch. Laws are written in vague ways with executive agencies given liberty to implement as they see fit. This gives a lot of additional power to the President (who can at least be dealt with by impeachment or being voted out in the next election) as well as independent executive agency heads (who can't be directly fired by anybody). I agree that Congress should be the ones passing laws as the excessive delegation of lawmaking by Congress is what's gotten us into the current situation
none of the authority Congress has delegated has been delegated irrevocably. if you want to change how the head of the FCC is appointed there's this thing called a law that can't be passed to change it
How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
Go read the Federalist Papers. The founders thought very hard about who should exercise which powers and how they should be selected. They did not intend for 99% of the actual government operations to be run by “independent” executive officials that were insulated from elections. That’s something we made up in the 20th century in response to trendy ideas about “scientific government.”
The Federalist Papers is not "the founders". It's Alexander Hamilton and James Madison. There were numerous factions running around the Constitutional Convention, and they negotiated the final document together.
I don't understand why the Federalist Papers gets cited as if it were part of the Constitution. It is not a definitive source of anything except the opinion of those two (three, with Jay) men.
The Federalist Papers reflects the views of the majority faction of those who wrote the constitution. You can get the minority opinion in the Anti-Federalist papers.
But find me any contemporaneous document that suggests the framers thought power should be exercise by unelected bureaucrats insulated from oversight by elected officials.
>How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
And in doing so they reshaped the precedent. One can't claim Brown v Board is not precedent just because Plessy v Ferguson already spoke on the same matter.
I’m responding to the OP’s criticism that proponents of the unitary view of the executive “believe this is the government defined by the Constitution, regardless of precedent.”
It seems odd to complain about giving insufficient respect to precedent, when that precedent itself overruled a prior precedent.
I agree precedents should be overruled when they are contrary to the text of the constitution, such as when Brown overruled Plessy. There are a lot of 20th century precedents that are wrong and are based more on convenience and a desire to appease FDR than on the text of the constitution.
> The founders thought very hard about who should exercise which powers and how they should be selected.
Which would be perfectly fine as a basis if we were still in the 18th century.
Things are, I believe, somewhat different now and what a bunch of rich old white men thought then isn't all that relevant now except as a historical oddity.
If you think what the founders said doesn’t matter because they’re dead white guys, isn’t that an argument for giving more power to the guy who won the election? Because surely the dead hand of the founders is the only thing that has the authority to overrule the elected President.
It has to be a dichotomy, right? You either go by what the constitution meant to those who wrote it, because that’s how written agreements work, or otherwise you go with what the mob wants. How can there be some third option?
No, why would it have to be a dichotomy? That doesn't make any sense.
For example, the Catholic Church is neither (solely) defined by a set of 2,000 year old writings, nor is it under strict authoritarian rule by the elected Pope. The Church has been gradually sculpted and steered by centuries of councils, disagreements and reconciliations, power struggles, competing institutions, and much more. It is its own thing, defined by precedent and history and nearly unrecognizable when compared across centuries.
The approach of the Catholic church is internally consistent, because it is premised on the existence of divine law which the church as an institution is specially entrusted with conveying to the laity.
That approach makes no sense in a secular democracy. There is no divine law to interpret, and there is no body like the Catholic church charged with mediating between divine law and the laity. The only source of authority is the consent of the governed. The constitution and amendments reflects the consent of a supermajority that can bind subsequent majorities. But any intermediate majority can be overruled by a subsequent majority. In that framework, the only sources of authority that can overrule the present majority are the edicts previously sanctioned by supermajorities. And the only relevant meaning of those edicts is what they would have meant to the people who consented to them.
If you dispense with the idea that the intent of the framers matters, then you’re dispensing with the authority of the supermajority that consented to what the framers wrote. That leaves only the present majority as the only source of authority.
The fact that you still call the "founders" the "founders" as if they were a single unified person/entity with non-conflicting values shows me what kind of "originalist" jurisprudence you go for.
The concept of independent agencies (that is, those overseen by Congress rather than the president) was controversial long before, and for far longer, than it wasn't.
It's not, really. In Seila Law v. CFPB (2020) the Supreme Court ruled that even directors seemingly protected by for-cause language (which the FCC charter does not have) can be removed at will unless the agency in question "exercises no part of the executive power" and is "an administrative body ... that performs ... specified duties as a legislative or as a judicial aid." https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Fina...
Do you have a case which was not about the executive authority of Donald Trump specifically? When we talk about how controversial or how new this interpretation is, the question I really have in mind is, why should I believe that it was developed out of genuine legal analysis and not an unprincipled desire to give Trump more power?
It contains an exhaustive historical analysis explaining why the President has unrestricted power to remove executive officers.
The “unprincipled” decisions were the ones like Humphrey’s Executor that sought to find ways to implement the 20th century concept of an “expert administrative state.” That’s not the government that was created in our constitution.
Yeah the FCC is really about Weiner[1], if anything, not Humphrey's. Weiner established some precedent of "inferred" independence for agencies of a certain character (e.g. those whose function is wholly judicial or legislative) even when explicit removal protections are not included in the law.
In 2020, five years ago, was essentially the exact same court as today, except KBJ replaced Breyer. The precedence in question dates to 1935 Humphrey's Executor v. United States where a conservative Supreme Court sought to cut back executive power of a liberal president. Now we have a conservative Supreme Court expanding executive power for a conservative president. If you think the Roberts court would have let Joe Biden have this much power well then I have a bridge and some student loans to sell you
Humphrey's, which held that for-cause protections are constitutional for agencies that meet certain tests, while broadly relevant to current events (FTC etc.), is not relevant to FCC as FCC charter does not have explicit for-cause protections.
> If you think the Roberts court would have let Joe Biden have this much power well then I have a bridge and some student loans to sell you
Yes, I do think the time horizon of every SCOTUS member is longer than four years. I believe Gorsuch when he says:
I appreciate that, but you also appreciate that we're writing a rule for the ages. -- https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_3fb4.pdf
I think that they all have the hubris to see themselves as part of history and write their opinions for future generations. Not that they aren't biased by current events, but that they see themselves as larger than that.
