From a unitary to a unilateral presidency

Boston University Law Review

Volumn 88, Issue 2, 2008, Pages 523-559

  Krent, Harold J ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

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EID: 44849092567     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (209)

1. See, e.g., Keith Olbermann, Countdown: Bush Owes Troops an Apology, Not Kerry (MSNBC television broadcast Nov. 1, 2006), available at http://www.msnbc.msn.com/id/15519404 ("[President Bush] has spread any and every fear among us in a desperate effort to avoid that which he most fears - some check, some balance against what has become not an imperial, but a unilateral presidency.").
2. See Editorial, War in the Ruins of Diplomacy, N.Y. TIMES, Mar. 18, 2003, at A32;
3. Glenn Kessler, Forceful Tactics Catch Up with U.S.; Efforts to Build Support on Iraq Stymied by Two Years of International Resentment, WASH. POST, Feb. 16, 2003, at A26;
4. Steven R. Weisman, South Korea, Once a Solid Ally, Now Poses Problems for the U.S., N.Y. TIMES, Jan. 2, 2003, at A1.
5. See 152 CONG. REC. H52, 212-16 (daily ed. July 13, 2006) (statement of Rep. Frank) (describing Bush's presidency as a "plebiscitary presidency" whereby the President acts without congressional cooperation).
6. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811, 1821-1829, 1841-1846, 1861-1862 (2000).
7. For commentary on how Bush has bypassed FISA, see Bruce Fein, The Comey Conundrum, WASH. TIMES, May 22, 2007, at A14.
8. Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. 918, 918-21 (2002).
9. See Elizabeth Drew, Power Grab, N.Y. REV. BOOKS, June 22, 2006, at 10, 12; Jane Mayer, The Hidden Powers, NEW YORKER, July 3, 2006, at 44;
10. Bruce Schneier, Unchecked Presidential Power, STAR TRIB. (Minneapolis), Dec. 21, 2005, at A21. And, if the war is ongoing, like the war on terrorism, then the Commander-in-Chief power confers on the President a continuing mantle of authority to pursue whatever steps can strengthen the country, subordinating other constitutional provisions to that mandate. See Schneier, supra.
11. For two analyses that deal extensively with this issue, see generally Peter L. Strauss, Overseer, or "the Decider"?: The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007) [hereinafter Strauss, Overseer, or "the Decider"];
12. Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963 (2001).
13. See infra Part II.C.
14. I reference President Bush synonymously with the Bush administration as a whole, recognizing that the President's policies are shaped by many around him and that elements within the administration do not always agree.
15. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307, 312 (2006) (concluding that "[f]or the most part, the claims made in President Bush's signing statements - including claims relating to the 'unitary executive' - are similar to the claims by other recent presidents").
16. See infra Part II.
17. See infra Part III.A.
18. See infra Part III.B.
19. See infra Part III.C.
20. See HAROLD J. KRENT, PRESIDENTIAL POWERS 9-16 (2005).
21. U.S. CONST. art. II, § 1, cl. 1.
22. Id. art. II, § 3.
23. Id. art. II, § 2, cl 2.
24. Id. art. II, § 2, cl. 1.
25. See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 37-45 (1994);
26. Lawrence Lessig & Cass R Sunstein, The President and Administration, 94 COLUM. L. REV. 1, 85-119 (1994).
27. See Mistretta v. United States, 488 U.S. 361, 372 (1989).
28. THE FEDERALIST NO. 70, at 428 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
29. Professors Manheim and Ides write that "[t]he unitary executive theory embraces and promotes a notion of consolidated presidential power that essentially isolates the executive branch from any type of congressional or judicial oversight." Karl Manheim & Allan Ides, National Security and the Law: Special Issue: The Unitary Executive, L.A. LAW., Sept. 2006, at 24, 26. As I discuss, their criticism may be appropriate when evaluating President Bush's conduct, but for reasons different from what they propose. They err by concluding that concerns for a unitary executive necessarily preclude congressional or judicial oversight. Conflict over appointments clause issues or over the removal power, for instance, only modestly insulate the presidency from oversight from the other branches.
30. See, e.g., Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601, 607 (2005).
31. Id. at 730.
32. To avoid confusion, I occasionally refer to President George H.W. Bush as "Bush I" and President George W. Bush as "Bush II."
33. U.S. CONST. art. II, § 2, cl.2.
34. Humphrey's Ex'r v. United States, 295 U.S. 602, 626-32 (1934).
35. Morrison v. Olson, 487 U.S. 654, 685-93 (1988).
36. Professor Strauss suggests that the current President has extended a unitary conception of the Article II appointments authority too far. See Strauss, supra note 8, at 721-24.
37. Yoo, Calabresi & Colangelo, supra note 25, at 693.
38. See id. at 693-94.
39. Statement on Signing the Fisheries Bill, 2 PUB. PAPERS 1552, 1552 (Nov. 14, 1986).
40. See PHILLIP J. COOPER, BY ORDER OF THE PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION 201-03 (2002).
41. See Yoo, Calabresi & Colangelo, supra note 25, at 697-99.
42. Brief of Petitioner at 20, Bowsher v. Synar, 478 U.S. 714 (1986) (Nos. 85-1377, 85-1378, 85-1379) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982)) (alteration in original).
43. Id. at 17 (quoting THE FEDERALIST NO. 70, at 428-29 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
44. See Lear Siegler, Inc. v. Lehman, 843 F.2d 1102, 1119-20 (9th Cir. 1988); Ameron, Inc. v. U.S. Army Corps of Eng'rs, 809 F.2d 979, 988 n.6 (3d Cir. 1986).
45. Statement on Signing the Deficit Reduction Act of 1984, 2 PUB. PAPERS 1053, 1053 (July 18, 1984).
46. See Yoo, Calabresi & Colangelo, supra note 25, at 694-95.
47. Brief for the United States as Amicus Curiae Supporting Appellees at 29, Morrison v. Olson, 487 U.S. 654 (1988) (No. 87-1279) (emphasis added).
48. 487 U.S. 654, 685-93 (1988).
49. Statement on Signing the United States Commission on Civil Rights Act of 1983, 2 PUB. PAPERS 1634, 1635 (Nov. 30, 1983).
50. Statement on Signing the Bill Reauthorizing the Atlantic Striped Bass Conservation Act of 1984, 2 PUB. PAPERS 1312, 1312 (Oct. 1, 1986) ("Any interpretation of the statute that would vest the Atlantic State Fisheries Commission . . . with the authority to limit the exercise of enforcement discretion under Federal law by executive branch officials would raise a serious constitutional question.").
51. Exec. Order No. 12,291, 3 C.F.R. 127 (1982), reprinted in 5 U.S.C. § 601 app. at 431 (1982).
52. Id. § 3, 3 C.F.R. at 128-30, reprinted in 5 U.S.C. § 601 app. at 431, 432-33.
53. See Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 GEO. WASH. L. REV. 533, 554-57 (1989);
54. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075, 1080-82 (1986);
55. Alan B. Morrison, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation, 99 HARV. L. REV. 1059, 1064-71 (1986).
56. For a more empirical (and nuanced) assessment, see Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 70-76 (2006).
57. Yoo, Calabresi & Colangelo, supra note 25, at 706.
58. Id. at 708.
59. The court of appeals rebuffed Bush in Mail Order Ass'n of America v. United States Postal Service, 986 F.2d 509, 515 (D.C. Cir. 1993).
60. Memorandum from President George H.W. Bush to Postmaster Gen. Marvin Runyon (Dec. 11, 1992).
61. See Mackie v. Clinton, 827 F. Supp. 56, 59 (D.D.C. 1993) (holding that the controversy over threatened dismissals had become moot because "of the fact that President Bush is no longer in office").
62. Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, § 2008, 103 Stat. 2106, 2121 (codified at 20 U.S.C. § 1092b (2000)).
63. Statement on Signing the Omnibus Budget Reconciliation Act of 1989, 2 PUB. PAPERS 1718, 1719 (Dec. 19, 1989).
64. Statement on Signing the Social Security Independence and Program Improvements Act of 1994, 2 PUB. PAPERS 1471, 1472 (Aug. 15, 1994).
65. In INS v. Chadha, 462 U.S. 919, 943-60 (1983), the Supreme Court found the "legislative veto" unconstitutional.
66. See, e.g., Statement on Signing the Department of the Interior and Related Agencies Appropriation Act, 1995, 2 PUB. PAPERS 1674, 1674 (Sept. 30, 1994) ("There are several provisions in the Act that purport to require congressional approval before executive branch execution of aspects of the bill. The Administration will interpret such provisos to require notification only, since any other interpretation would contradict the Supreme Court ruling in INS v. Chadha.").
67. Act of July 5, 1994, Pub. L. No. 103-272, § 31134, 108 Stat. 745, 1001-03 (repealed 1998).
68. Statement on Signing Transportation Legislation, 1 PUB. PAPERS 1198, 1198-99 (July 5, 1994).
69. Statement on Signing the Lobbying Disclosure Act of 1995, 2 PUB. PAPERS 1907, 1907 (Dec. 19, 1995) (third and fourth alterations in original).
70. Exec. Order No. 12,866, § 4(c), 3 C.F.R. 638, 642 (1994), reprinted in 5 U.S.C. § 601 app. at 638, 639-40 (2000) ("For purposes of this subsection, the term 'agency' or 'agencies' shall also include those considered to be independent regulatory agencies, as defined in 44 U.S.C. § 3502(10).").
71. The President's News Conference, 2 PUB. PAPERS 1237, 1237 (Aug. 10, 1995).
72. Commencement Address at Grambling State University in Grambling, Louisiana, 1 PUB. PAPERS 836, 839 (May 23, 1999).
73. The proposed rule to reduce smoking and the paid leave examples are both discussed in Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2282-84 (2001). President Clinton also defended a view of a unitary executive in litigation surrounding his invocation of executive privilege. KRENT, supra note 16, at 184-86.
74. Kagan, supra note 64, at 2249; Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965, 967 (1997).
75. Alternatively, one might view Congress's role as setting a default rule, subject to presidential revision, as to which officer can discharge particular functions.
76. 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, §§ 2002, 2004, 116 Stat. 1758, 1789, 1790 (2002) (codified at 42 U.S.C. §§ 3796gg-0, 3796gg-0b (Supp. 2003)).
77. Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, 2 PUB. PAPERS 2010, 2011 (Nov. 2, 2002) [hereinafter Signing Statement of Nov. 2, 2002].
78. As discussed infra at text accompanying notes 79-87, textually the President's power in foreign affairs is no greater than for routine administrative matters. Nonetheless, as a functional matter, there arguably is greater need for coordination, and the Supreme Court has adverted to greater presidential control in the foreign-affairs arena. KRENT, supra note 16, at 85-89, 124-32.
79. § 11015(b), 116 Stat. at 1824.
80. Signing Statement of Nov. 2, 2002, supra note 68, at 2012.
81. See, e.g., The Constitutional Separation of Powers Between the President and Congress, 20 Op. Off. Legal Counsel 124, 175 (1996) (arguing that congressional directives to agency officials to report directly to Congress may violate the separation of powers because they "clearly weaken the President's control over the executive branch and by doing so increase congressional leverage on the President"); Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress, 6 Op. Off. Legal Counsel 632, 637 (1982) [hereinafter OLC Constitutionality of Statute Opinion] (arguing that the President or his designee must be able to review reports made by the FAA Administrator before the reports are transmitted to Congress lest "the Administrator would be severed from his superiors in the Executive Branch with respect to these matters"); Inspector General Legislation, 1 Op. Off. Legal Counsel 16, 17 (1977) (arguing that a proposal requiring the Inspector General to issue reports directly to Congress without presidential review is constitutionally problematic for robbing the President of his Article II power to supervise the work of subordinate officials); President Bill Clinton, Statement of Administration Policy (Mar. 9, 1998) (focusing on the importance of protecting privileged information that might be disclosed by lower level officials reporting to Congress).
82. Security and Accountability for Every Port Act of 2006, Pub. L. No. 109-347, § 709(b)(1); 120 Stat. 1884, 1948 (2006) (to be codified at 42 U.S.C. § 300hh-14).
83. Statement on Signing the SAFE Port Act, 42 WEEKLY COMP. PRES. DOC. 1817, 1817 (Oct. 13, 2006).
84. Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, § 645(a), 116 Stat. 1350, 1403 (2002) (codified at 22 U.S.C. § 2151p (Supp. 2003)).
85. See Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, 2 PUB. PAPERS 1697, 1698 (Sept. 30, 2002) ("The executive branch shall implement [section 645 of the Act] in a manner consistent with the President's authority to supervise the unitary executive branch, including the authority to direct which officers in the executive branch shall assist the President in faithfully executing the law.").
86. President Bush similarly objected to a string of congressional provisions mandating that he consult with other executive actors before making a final decision. In the context of the Enhanced Border Security and Visa Entry Reform Act of 2002, for example, President Bush challenged a legislative directive that he consult with the Director of the National Institute of Standards and Technology "[i]n the development and implementation of the data system under this subsection." Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No. 107-173, § 202(a)(3), 116 Stat. 543, 549 (2002) (codified at 8 U.S.C. § 1722 (Supp. 2003)). Bush explained that: "The President's constitutional authority to supervise the unitary executive branch and take care that the laws be faithfully executed cannot be made by law subject to requirements to exercise those constitutional authorities . . . in coordination or consultation with specified officers or elements of the Government." Evidently, Congress cannot shape delegations to the executive branch in a way that requires consultation with subordinate officers under the President's thumb or that indicates which officer is to exercise which functions.
87. Authority of Agency Officials to Prohibit Employees from Providing Information to Congress, Op. Off. Legal Counsel (May 21, 2004) (quoting OLC Constitutionality of Statute Opinion, supra note 72, at 638-39), available at http://www.usdoj.gov/olc/crsmemoresponsese.htm.
88. As noted, the Opinion quotes an earlier OLC Opinion under President Reagan, but that previous Opinion would have permitted Congress to vest greater authority in executive branch officials, particularly those who are department heads. See OLC Constitutionality of Statute Opinion, supra note 72, at 641-42.
89. As mentioned previously, as a matter of constitutional text, there is no difference between the President's power in the foreign and domestic realm, unless the Commander in Chief Clause is in play. See supra note 69.
90. Energy and Water Development Appropriations Act, 2004, Pub. L. No. 108-137, pmbl., 117 Stat. 1827, 1827 (2003) ("The following appropriations shall be expended under the direction of the Secretary of the Army and the supervision of the Chief of Engineers for authorized civil functions of the Department of the Army pertaining to rivers and harbors, flood control, shore protection, aquatic ecosystem restoration, and related purposes.").
91. Statement on Signing the Energy and Water Development Appropriations Act, 2004, 2 PUB. PAPERS 1659, 1659 (Dec. 1, 2003).
92. Vision 100 - Century of Aviation Reauthorization Act, Pub. L. No. 108-176, 117 Stat. 2490 (2003) (codified in scattered sections of 49 U.S.C).
93. Id. § 812(a), 117 Stat. at 2590.
94. Statement on Signing the Vision 100 - Century of Aviation Reauthorization Act, 2 PUB. PAPERS 1716, 1717 (Dec. 12, 2003).
95. 299 U.S. 304 (1936).
96. Id. at 319-20 (citation omitted).
97. For a similar example under President Clinton, see Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, 1 PUB. PAPERS 807, 808 (Apr. 30, 1994) (stating that the Constitution gives the Executive special authority in the area of foreign affairs and that his "constitutional authority over foreign affairs . . . necessarily entails discretion over [provisions that direct the President how to negotiate with international organizations]. Accordingly, [he] shall construe these provisions to be precatory.").
98. See Statement on Signing the Energy and Water Development Appropriations Act, 2004, supra note 81, at 1659; see also supra text accompanying notes 80-81.
99. See Bradley & Posner, supra note 11, at 317, 323 tbl.
100. Maritime Transportation Security Act of 2002, Pub. L. No. 107-295, 116 Stat. 2064.
101. Statement on Signing the Maritime Transportation Security Act of 2002, 2 PUB. PAPERS 2132, 2132 (Nov. 25, 2002).
102. § 110(c)(4), 116 Stat. at 2092.
103. Id. § 112(4), 116 Stat. at 2093.
104. See supra text accompanying notes 67-71.
105. 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 309(c), 116 Stat. 1758, 1785 (2002).
106. Signing Statement of Nov. 2, 2002, supra note 68, at 2011.
107. § 207(d), 116 Stat. at 1780.
108. Signing Statement of Nov. 2, 2002, supra note 68, at 2011.
109. Id.
110. See Bradley & Posner, supra note 11, at 326 (quoting Statement on Signing the Balanced Budget Act of 1997, 2 PUB. PAPERS 1053, 1054 (Aug. 5, 1997)) (arguing that President Bush's signing statements are no different in kind than President Clinton's, one of which included the right to "review [subordinates'] proposed communications to the Congress" (emphasis added));
111. Strauss, Overseer, or "the Decider," supra note 8, at 725 ("[T]he President explicitly claims the right to approve reports and recommendations to Congress as a condition upon their being made . . . ." (emphasis added)).
112. See infra notes 117-19 and accompanying text.
113. Exec. Order No. 12,866 § 7, 3 C.F.R. 638, 648 (1994), reprinted in 5 U.S.C. § 601 app. at 638, 642 (2000).
114. Statement on Signing the Homeland Security Act of 2002, 2 PUB. PAPERS 2128, 2129 (Nov. 25, 2002).
115. U.S. CONST. art. II, § 3.
116. President Clinton similarly noted that "[the Recommendations] Clause protects the President's authority to formulate and present his own recommendations, which includes the power to decline to offer any recommendation." Statement on Signing Legislation on Long-Term-Care Insurance for Federal Employees and Retirees and Members of the Armed Forces, 2 PUB. PAPERS 1866, 1867 (Sept. 19, 2000).
117. Moreover, in the analogous context of judicial/executive relations, the Supreme Court, on a number of occasions, has held that it has less power to compel action from the President than from his subordinates. It has overturned injunctions against the President but routinely issued injunctions against his subordinates, the heads of agencies. See, e.g., Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 498-501 (1866). Moreover, the Court has declined to order the President to defend against suits challenging acts in his official capacity while compelling his subordinates to defend against suit arising out of the same events. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982).
118. 462 U.S. 919 (1983).
119. Id. at 935 n.9.
120. 8 U.S.C. § 1254(c)(1) (1982) (repealed 1996).
121. See Chadha, 462 U.S. at 935 n.9 (recognizing the legitimacy of the report and wait provision generally); see also Alaska Airlines v. Brock, 480 U.S. 678, 690 (1987) ("This interval gives Congress an opportunity to review the regulations and either to attempt to influence the agency's decision, or to enact legislation preventing the regulations from taking effect."). Interestingly, in a companion provision under the Act, 8 U.S.C. § 1254(c)(3), the Attorney General's report would have become effective if "the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation." In other words, Congress placed the report and wait provision side by side with the request for a legislative recommendation. In both contexts, information and recommendations for legislation from agencies provide grist for possible legislative revisions where needed.
122. 312 U.S. 1 (1941).
123. Id. at 15.
124. 5 U.S.C. § 1218 (2000).
125. Some academics disagree. See RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 51 (1974);
126. Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 MINN. L. REV. 1143, 1151-53 (1999).
127. The OLC has agreed. See Inspector General Legislation, 1 Op. Off. Legal Counsel 16, 17 (1977) ("The President's power of control extends to the entire executive branch, and includes the right to coordinate and supervise all replies and comments from the executive branch to Congress.").
128. A 1982 OLC Opinion recognized the greater threat to privilege when Congress required "production of recommendations and deliberative documents" after the enactment of legislation, as opposed to proposals for legislative change. OLC Constitutionality of Statute Opinion, supra note 72, at 640 n.4.
129. Even without presidential review, members of the public in most contexts would be unaware of such proposals, and the President or his delegate could always clarify that the proposal differed from that favored by his administration. See Strauss, Overseer, or "the Decider," supra note 8, at 727-28.
130. Balanced Budget Act of 1997, Pub. L. No. 105-33, § 4422, 111 Stat. 251, 414.
131. Statement on Signing the Balanced Budget Act of 1997, 2 PUB. PAPERS 1053, 1054 (Aug. 5, 1997) (emphasis added).
132. Statement on Signing the Housing and Community Development Act of 1992, 2 PUB. PAPERS 2060, 2061 (Oct. 28, 1992) (quoting Housing Community and Development Act of 1992, Pub. L. No. 102-550, § 313(e), 106 Stat. 3672, 3946 (codified at 12 U.S.C. § 4513(e) (2000)).
133. OLC Constitutionality of Statute Opinion, supra note 72, at 640.
134. See, e.g., Strauss, Overseer, or "the Decider," supra note 8, at 725-27 (arguing that presidential review of the reports is not constitutionally required).
135. See OLC Constitutionality of Statute Opinion, supra note 72, at 642-43.
136. Id. at 638. The OLC report admittedly was ambivalent. It asserted that "the Executive has explicitly determined that disclosure of unreviewed recommendations by subordinates within the Executive Branch would adversely affect the President's ability to carry out his responsibilities." Id. at 640. To that end, executive branch officials should make "recommendations to the President concerning such legislative action so that the President may review them and determine which measures 'he shall judge necessary and expedient.'" Id. (quoting U.S. CONST. art. II, § 3). Thus, when Congress "purports to require a subordinate executive official to present legislative recommendations of its own" it "transgresses upon the President's constitutionally designated role." Id. Yet, the report never advanced the position followed by President Bush II that the recommendations power was exclusive.
137. Exec. Order No. 13,422, § 5(b), 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007).
138. Compare id., with Exec. Order No. 12,866, § 6(a)(2), 3 C.F.R. 638, 645 (1994), reprinted in 5 U.S.C. § 601 app. at 638, 640 (2000).
139. Compare Exec. Order No. 13,422, § 4(b), 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007), with Exec. Order No. 12,866, § 4(c)(1), 3 C.F.R. 638, 642 (1994), reprinted in 5 U.S.C. § 601 app. at 638, 639 (2000).
140. See Exec. Order No. 13,422, §§ 4(b), 5(b), 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007).
141. Id. § 4(b).
142. To date, many of the regulatory policy officers appointed have been general counsels, and some of the appointees have not been subject to Senate confirmation. See Office of Management and Budget, Agency Regulatory Policy Officers (as of Feb. 7, 2008), http://www.whitehouse.gov/omb/inforeg/ regpol/agency_reg_policy_officers.pdf.
143. See Strauss, Overseer, or "the Decider," supra note 8, at 732-38.
144. Exec. Order No. 12,866, § 4(b)-(c), 3 C.F.R. 638, 642 (1994), reprinted in 5 U.S.C. § 601 app. at 638, 639 (2000).
145. See supra text accompanying notes 62-65.
146. See Exec. Order No. 12,866, § 6(a)(2), 3 C.F.R. 638, 645 (1994), reprinted in 5 U.S.C. § 601 app. at 638, 640 (2000). For general discussion, see DeMuth & Ginsburg, supra note 48, at 1085 (describing OMB's role in one regulatory policy review as the "resolution of a complex and contentious jurisdictional conflict between two agencies"); Kagan, supra note 64, at 2290.
147. Proposed Executive Order Entitled "Federal Regulation," 5 Op. Off. Legal Counsel 59, 60 (1981) (quoting Myers v. United States, 272 U.S. 52, 135 (1926)).
148. Id. at 61.
149. Id. at 62 (quoting Myers, 272 U.S. at 135).
150. Id.
151. See infra Part III.B.
152. The super-strong variant of the unitary executive theory finds some roots in prior presidential administrations. Long ago, Attorney General Caleb Cushing asserted that no agency head "can lawfully perform an official act against the will of the President." Relation of the President to the Executive Departments, 7 Op. Att'y Gen. 453, 469-70 (1855). Similarly, Attorney General Wirt declared in the midst of the Civil War that "the true theory of departmental administration is, that heads of the Executive Departments shall discharge their administrative duties in such manner as the president may direct; they being, as one of my predecessors terms them 'executors of the will of the President.'" Relation of the President to the Executive Departments, 10 Op. Att'y Gen. 527, 527 (1863) (quoting 7 Op. Att'y Gen., supra, at 463). For a discussion of competing views of Attorneys General, see generally Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 717-28 (2005).
153. Moreover, some academics have championed the super-strong variant. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 568-70 (1994) ("Does Article IPs vesting of the President with all of the 'executive power' give him control over all federal governmental powers that are neither legislative nor judicial? The answer is unambiguously yes.");
154. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1242 (1994).
155. See supra notes 37-38 and accompanying text.
156. See supra notes 41-43 and accompanying text.
157. See supra notes 50-53 and accompanying text.
158. All three Presidents also attacked Chadha-type arrangements.
159. Administrative Procedure Act, 5 U.S.C. §§ 551-559 (2000).
160. 347 U.S. 260 (1954).
161. Id. at 266-68.
162. Id. at 267.
163. For a discussion of Accardi, see generally Thomas W. Merrill, The Accardi Principle, 74 GEO. WASH. L. REV. 569 (2006).
164. 984 F.2d 1534 (9th Cir. 1993).
165. Id. at 1536-37.
166. See id. at 1547-48.
167. See, e.g., Sierra Club v. Costle, 657 F.2d 298, 404-08 (D.C. Cir. 1981) (stating that the EPA must place conversations with the President on the administrative record if the EPA partly based its ultimate decision on that conversation), rev'd on other grounds, 463 U.S. 680 (1983); see also Pub. Citizen Health Research Group v. Tyson, 796 F.2d 1479, 1483-84, 1507 (D.C. Cir. 1986) (noting the difficult constitutional question arising from OMB's participation in rulemaking).
168. As the court stated in Sierra Club v. Costle, "it is always possible that undisclosed Presidential prodding may direct an outcome that is factually based on the record, but different from the outcome that would have obtained in the absence of Presidential involvement." Sierra Club, 657 F.2d at 408.
169. For example, Congress created the FTC largely because it did not trust the DOJ in antitrust matters. See Charles Tiefer, The Constitutionality of Independent Officers as Chech on Abuses of Executive Power, 63 B.U. L. REV. 59, 81 (1983); see also Humphrey's Ex'r v. United States, 295 U.S. 602, 625-26 (1935), stating: Thus, the language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the Congressional intent to create a body of experts who shall gain experience by length of service - a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government. Congress's decision would be superfluous under the aggressive position advanced by the Bush Administration.
170. See Kevin M. Stack, The President's Statutory Powers To Administer the Laws, 106 COLUM. L. REV. 263, 322-23 (2006) (concluding that Congress has distinguished between delegations to Presidents and other executive branch officials).
171. See Morrison v. Olson, 487 U.S. 654, 685-97 (1988).
172. The President and Accounting Officers, 1 Op. Att'y Gen. 624, 625 (1823).
173. Id.
174. Id. at 629.
175. 37 U.S. (12 Pet.) 524 (1838).
176. Id. at 524.
177. Id. at 610.
178. Id.
179. Id. at 613.
180. The Supreme Court has variegated review of administrative action based on the identity of the official proffering the interpretation. It matters to the Court which agency interpreted the law. The interpretation of those charged by Congress with the duty to administer the particular statute receives greater deference. In Martin v. Occupational Safety & Health Review Commission, 499 U.S. 144 (1991), the Court held that Chevron deference would be applied only to an interpretation by the agency that had crafted the regulation at stake. See id. at 158. The Court's decision recognized Congress's interest in appointing specific agencies as principal architects of particular policies, and it is only those agencies whose interpretations warrant deference. President Bush's position elides those distinctions among agency heads - all might be entitled to equal deference given that they all reflect presidential policy equally. The Court's decision in Gonzales v. Oregon, 546 U.S. 243 (2006), is to similar effect. There, the Court refused to pay deference to an Attorney General's interpretation of the Controlled Substances Act in part because Congress did not intend to give the Attorney General, as opposed to the Secretary of Health and Human Services, the power to shape regulation of the health profession. See id. at 255-56. The Court therefore has recognized at least one consequence flowing from Congress's power to determine where to lodge particular powers.
181. See supra notes 50-53 and accompanying text.
182. Humphrey's Ex'r v. United States, 295 U.S. 602, 619-20 (1935).
183. For insightful analysis, see generally Percival, supra note 8.
184. Id. at 1004.
185. Id.
186. For a recent retelling of the story, see Strauss, Overseer, or "the Decider," supra note 8, at 706.
187. See Percival, supra note 8, at 1004 n.241 (noting that the White House "backed off" of a demand for the EPA to seek a stay of a court order after the EPA Administrator threatened to resign over the issue); Strauss, Overseer, or "the Decider," supra note 8, at 707 ("[Political] visibility might lead a President simply to accept his official's contrary-to-advice decision.").
188. See Percival, supra note 8, at 981-86.
189. Overman Act pmbl., ch. 78, 40 Stat. 556, 556 (1918).
190. Reorganization Act of 1949, § 5(a)(1), ch. 226, 63 Stat. 203, 205.
191. See generally PERI E. ARNOLD, MAKING THE MANAGERIAL PRESIDENCY (1986).
192. See Weiss v. United States, 510 U.S. 163, 174 (1994); Shoemaker v. United States, 147 U.S. 282, 301 (1893).
193. 300 U.S. 139 (1937).
194. Shipping Act of 1916, § 21, ch. 451, 39 Stat. 728, 736.
195. Exec. Order No. 6,166, §12, reprinted in 5 U.S.C. § 901 app. at 659, 662 (2000).
196. Merchant Marine Act, 1936, ch. 858, 49 Stat. 1985.
197. Isbrandtsen-Moller, 300 U.S. at 149.
198. Exec. Order No. 13,228, § 1, 3 C.F.R 796, 796 (2001), reprinted as amended in 50 U.S.C. § 402 app. at 15, 15 (Supp. 2004).
199. Ultimately, Congress shifted to the new agency responsibilities formerly exercised by the Department of Justice, the CIA, and the Federal Emergency Management Agency, among others. See Homeland Security Act of 2002, Pub. Law No. 107-296, 116 Stat. 2135 (codified in scattered sections of 6 U.S.C).
200. HAROLD C. RELYEA, CONGRESSIONAL RESEARCH SERVICE, EXECUTIVE BRANCH REORGANIZATION AND MANAGEMENT INITIATIVES 8 (2002).
201. See White House Plan To Put New FOIA Office in Justice Department Draws Lawmakers' Ire, 76 U.S.L.W. (BNA) 2441, 2441 (Jan. 29, 2008).
202. See Press Release, Senator Patrick Leahy, FOIA Ombudsman Belongs at Archives, Not DOJ (Feb. 14, 2008), available at http://leahy.senate. gov/press/200802/021408a.html.
203. Limitations on Presidential Power To Create a New Executive Branch Entity To Receive and Administer Funds Under Foreign Aid Legislation, 9 Op. Off. Legal Counsel 76, 76 (1985).
204. Id. at 77.
205. Id. at 78.
206. Centralizing Border Control Policy Under the Supervision of the Attorney General, 26 Op. Off. Legal Counsel, slip op. at 2 (2002).
207. See Chamber of Commerce v. Reich, 74 F.3d 1322, 1337 (D.C. Cir. 1996) (rejecting President Clinton's order that contracting agencies of the government were not to contract with employers that permanently replace striking employees as inconsistent with the NLRA which guarantees the right to hire permanent replacements).
208. See Morrison v. Olson, 487 U.S. 654, 673-77 (1988).
209. See Harold J. Krent, The Lamentable Notion of Indefeasible Presidential Powers: A Reply to Professor Prakash, 91 CORNELL L. REV. 1383, 1401-02 (2006).