The accountable executive

Minnesota Law Review

Volumn 93, Issue 5, 2009, Pages 1741-1777

  Kitrossert, Heidi ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 68349100073     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (170)

1. quot;[E]xecutive privilege claims are based on the notion that some information requests effectively infringe on the President's Article II powers, threatening his ability to receive candid advice or to protect national security." Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWAL. REV. 489, 492 (2007).
2. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1158 (1992).
3. See, e.g., Felicity Barringer, White House Refused to Open Pollutants E-mail, N.Y. TIMES, June 25, 2008, at A15; Juliet Eilperin, White House Tried to Silence EPA Proposal on Car Emissions, WASH. POST, June 26, 2008, at A2; Ron Suskind, Without a Doubt, N.Y. TIMES, Oct. 17, 2004, (Magazine), at 51.
4. 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, 49-50 (2006) ("Presidential control is a 'they,' not an 'it."').
5. See Kitrosser, supra note 1, at 491-92.
6. See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 35-37, 45, 59, 65-66 (1995); Lawrence Les-sig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 97-99 (1994); Saikrishna Bangalore Prakash, Note, Hail to the Chief Administrator: The Framers and the President's Administrative Powers, 102 YALE L.J. 991, 998-99, 1012-15 (1993).
7. See sources cited supra note 6.
8. See sources cited supra note 6.
9. I do not mean to suggest that others have failed to note the phenomenon of secret White House involvement in administrative affairs. A number of commentators, particularly in the administrative law literature, have discussed secrecy in White House oversight of rule makings. See, e.g., Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1266-67, 1281-82, 1309-10 (2006); Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 878, 882, 884-85 (2003); Christoper C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HAEV. L. REV. 1075, 1085-86 (1986); Alan B. Morrison, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation, 99 HARV. L. REV. 1059, 1064-65, 1067-69 (1986); Erik D. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12, 291, 4 VA. J. NAT. RESOURCES L. 1, 4-5, 14, 55-64 (1984); Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN. L. REV. 181, 188-89 (1986). My point is that sustained analyses of the connection between secrecy, accountability, and unitary executive theory have been relatively rare. They are not, however, unprecedented. For examples of such analysis, see Peter M. Shane, Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers, 11 YALE L. & POL'Y REV. 361, 400-01 (1993), and Michele Estrin Gilman, The President as Scientist-in-Chief, 45 WILLAMETTE L. REV. (forthcoming Apr. 2009).
10. I use the term "unitarian"-despite its usual religious implications-as shorthand, given the unwieldy nature of the phrase "unitary executive theorist." Others have used the term to describe unitary executive theorists as well, presumably for the same reason. See, e.g., Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1740-44 (1996).
11. See M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1138 (2000).
12. Heidi Kitrosser, Accountability & Administrative Structure, 45 WILLAMETTE L. REV. (forthcoming Apr. 2009).
13. See infra Part III.A.
14. See Calabresi & Rhodes, supra note 2, at 1166.
15. See infra Part III.B.
16. See Calabresi & Rhodes, supra note 2, at 1166.
17. See id. at 1165-66.
18. See infra Conclusion.
19. Calabresi & Rhodes, supra note 2, at 1158.
20. Id. at 1166.
21. 49 U.S.C. § 44701(a) (2006).
22. Calabresi & Rhodes, supra note 2, at 1166.
23. Id.
24. For better or worse, separation-of-powers arguments fall into two main categories: formalist and functionalist. See Magill, supra note 11, at 1138. Formalists tend to focus on whether a given activity is legislative, executive, or judicial, and to suggest that relatively clear and unalterable constitutional rules apply to each (e.g., if an activity is executive in nature, the President must control it; if an activity is legislative in nature, it must go through the legislative procedures outlined in Article I, Section 7 of the Constitution). See id. at 1138-40. Functionalists tend to be less convinced that all government actions can be neatly divided into three categories or that the Constitution outlines categorical rules as to how such actions must proceed. See id. at 1142-44. In situations where they see no clear rules, they tend to emphasize constitutional principles-arguing that the relevant constitutional question is whether a particular action functionally impedes applicable constitutional principles. See id. Of course, commentators can and often do address both types of arguments (e.g., formalism demands a unitary executive, but even if formalism does not so demand, functional principles lead to the same conclusion). For a similar summary of formalism and functionalism, see for example, Magill, supra note 11, at 1138-44.
25. See Flaherty, supra note 10, at 1740 (explaining that while unitarians cite other principles as well, "[m]ost often these goals collapse into what is easily the dominant constitutional value that [unitarians] identify-the requirement that government remain accountable to the people").
26. See, e.g., Calabresi, supra note 6, at 42-45 (explaining that Alexander Hamilton considered a unitary executive a necessity for ensuring accountability); Prakash, supra note 6, at 998-99 (noting that among the reasons the Fra-mers rejected a plural executive was their belief that a "single, responsible executive could be accountable for his personal selections and administrative decisions").
27. See Flaherty, supra note 10, at 1824.
28. See, e.g., Calabresi, supra note 6, at 35-37, 59, 65-66 (arguing that the essential ingredient in combating the congressional collective action problem is the President's national voice); see also Morton Rosenberg, Congress's Prerogative over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration's Theory of the Unitary Executive, 57 GEO. WASH. L. REV. 627, 690-91 (1989) (describing and criticizing this argument).
29. See, e.g., Lessig & Sunstein, supra note 6, at 97-99.
30. In their paper for this panel, Steven Calabresi and Nicholas Terrell express concern about the secrecy of communications in the oversight process between congressional committees and the federal bureaucracy. Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 MINN. L. REV. 1696, 1704 n.45 (2009). Congress has similar legislative flexibility to address oversight abuses and secrecy by congressional committees as it does to address those in the executive branch. This example bolsters the point that undue political control of the bureaucracy, and secrecy in the same, is a complex and multifaceted problem that is best addressed through legislative flexibility rather than by constitutionalizing the blunt and problematic instrument of the unitary executive.
31. See, e.g., Calabresi, supra note 6, at 65 ("The minute some portion of the executive is cut free from the President and the national electoral constituency which he and he alone represents, it tends to become swallowed up by the state and local pressures that drive the congressional committees and subcommittees.").
32. See id. at 58-70; Prakash, supra note 6, at 993, 1012-15 (discussing the Framers' rejection of a plural executive because of its tendency to destroy responsibility and conceal faults).
33. See, e.g., Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 177 (1994) (acknowledging that it is difficult for citizens to know whom to blame when something goes wrong in a system of divided powers and complex checks and balances); cf. Lessig & Sunstein, supra note 6, at 2-4, 85-86, 94, 98-99 (rejecting formalist arguments for unity but embracing the accountability argument and thus largely supporting unity).
34. See Flaherty, supra note 10, at 1785. For a general discussion of simple versus joint accountability, see id. at 1767-68, 1785-86, 1804-05, 1821-22, 1824-25.
35. See id. at 1785 (explaining that colonial legislatures had acted in such a fashion under systems of simple accountability).
36. See, e.g., Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 992-1007, 1017-20 (1997) (arguing that the characteristics of American democratic governance make a unitary executive unsuitable); Jerry L. Mashaw, Structuring a "Dense Complexity": Accountability and the Project of Administrative Law, ISSUES IN LEGAL SCHOLARSHIP, Mar. 2005, art. 4, at 12-15, 35-38 (2005), http://www.bepress.com/ils/iss6/art4.
37. Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 GEO. WASH. L. REV. 596, 613-14 (1989).
38. Id.
39. Id.
40. Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 197-202 (1995).
41. Id.
42. Id. at 199-200.
43. See id. at 203-06 (arguing that a President's "abandonment of particular interests in a particular episode is not likely to be so important to his reelection prospects-if he has any-to deter a President determined to go his own way").
44. Id. at 204-09; see also Shane, supra note 9, at 400 ("There is an obvious tension between theoretical support for plenary presidential authority regarding foreign affairs on the grounds of accountability and the efforts of Presidents who largely possess such authority to shield their exercise of power from public exposure.").
45. Rebecca L. Brown, Accountability, Liberty, and the Constitution, 98 COLUM. L. REV. 531, 552-59, 564-65 (1998).
46. Id. at 564-65.
47. Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2076-83 (2005).
48. Id. at 2119.
49. See id. at 2078-80, 2121-22, 2134-35. Rubin further argues that elections themselves are predominantly geared not toward accountability, but toward succession and representativeness. Id. at 2078, 2134-35.
50. See, e.g., Cynthia R. Farina, Undoing the New Deal Through the New Presidentialism, 22 HARV. J.L. & PUB. POL'Y 227, 233-34 (1998) (arguing that presidential control is uniquely problematic in the context of administrative adjudications and "even the most ardent presidentialists have been careful to insist that the Chief Executive could not intervene to direct the outcome of particular cases").
51. Shane, supra note 37, at 613.
52. Id. at 613-14.
53. See id.
54. Heidi Kitrosser, Classified Information Leaks and Free Speech, 2008 U. ILL. L. REV. 881, 917-18.
55. THE FEDERALIST NO. 70, at 428-29 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
56. Id. at 392, 395-98.
57. Id. at 395-96.
58. Id. at 398.
59. Id. at 428-29.
60. 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, RATIFICATION BY THE STATES, PENNSYLVANIA 495 (Merrill Jensen ed., 1976) (emphasis omitted).
61. 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, RATIFICATION BY THE STATES, VIRGINIA 865 (John P. Kaminski & Gaspare J. Saladino eds., 1990).
62. 8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, RATIFICATION BY THE STATES, VIRGINIA 245 (John P. Kaminski & Gaspare J. Saladino eds., 1988) (emphasis omitted).
63. See Brown, supra note 45, at 553-54.
64. id. at 553.
65. The elections I refer to are the indirect election of President through the electoral college, U.S. CONST. art. II, § 1, cl. 3; the direct election of Representatives, id. art. I, § 2, cl. 1; the indirect election of Senators through elected state legislatures, id. art. I, § 3, cl. 1; and, since the passage of the Seventeenth Amendment, the direct election of Senators, id. amend. XVII.
66. Elsewhere, I have discussed the relative transparency and delibera-tiveness of the legislative process as a matter of constitutional text, structure, and history. See, e.g., Kitrosser, supra note 1, at 518-20.
67. U.S. CONST. art. I, § 8, cl. 18.
68. See Kitrosser, supra note 12, Part II.
69. See Flaherty, supra note 10, at 1740 (noting that other values aside from accountability are relevant but that accountability is the major value touted by unitarians and at issue in the unitary-executive debate generally).
70. Cf. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 579 (1984) ("Each agency is subject to control relationships with some or all of the three constitutionally named branches, and those relationships give an assurance-functionally similar to that provided by the separation-of-powers notion for the constitutionally named bodies-that they will not pass out of control.").
71. See, e.g., Lessig & Sunstein, supra note 6, at 102-03.
72. See Kitrosser, supra note 12, at 5.
73. See Lessig & Sunstein, supra note 6, at 2. Unlike other unitarians, Lawrence Lessig and Cass Sunstein stop short of a categorical demand. Rather, they argue that there ought to be, at minimum, a presumption favoring unity. Id. at 103. This is a step in the right direction insofar as it assumes that unity is not formally demanded and that there may be some cases in which unity undermines accountability. Nonetheless, because the notion that unity presumptively enhances accountability is at least reasonably arguable, Con-gress must retain more leeway to depart from unity than the opportunity to rebut a presumption favoring it.
74. 487 U.S. 654, 686-93 (1988).
75. Id. at 693.
76. More precisely, the statute permitted termination only for "good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties." Id. at 663 (quoting 28 U.S.C. § 596(a)(1) (Supp. V 1982)).
77. Id. at 686.
78. Id. at 691.
79. See Mistretta v. United States, 488 U.S. 361, 372 (1989).
80. See, e.g., id.
81. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 521-22, 539-40 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 406, 432-33 (1935).
82. 5 U.S.C. §§ 551-569 (2006).
83. See Schechter Poultry, 295 U.S. at 521-22, 539-40; Panama Refining Co., 293 U.S. at 406, 432-33.
84. See Schechter Poultry, 295 U.S. at 521-22, 539.
85. See id. at 539-41.
86. See Panama Refining Co., 293 U.S. at 431.
87. See Schechter Poultry, 295 U.S. at 539-40; Panama Refining Co., 293 U.S. at 432-33.
88. Schechter Poultry, 295 U.S. at 539-40; Panama Refining Co., 293 U.S. at 432-33.
89. See, e.g., Schechter Poultry, 295 U.S. at 539-40; Panama Refining Co., 293 U.S. at 432-33 (comparing the President's "unfettered discretion" with legislatively created administrative agencies that are required to support their orders with findings of fact that are sustained by evidence).
90. See, e.g., Panama Refining Co., 293 U.S. at 432 (describing how the President must show the "determinations of fact" authorizing his authority to give a legislative order).
91. See, e.g., Schechter Poultry, 295 U.S. at 538-40; Panama Refining Co., 293 U.S. at 432.
92. See Morrison v. Olson, 487 U.S. 654, 703-07 (1988).
93. See U.S. CONST. art. I, § 8.
94. Notably, Peter Strauss interprets case law regarding presidential removal power to support the view that Congress may restrict such power only when it declines to grant such power to itself. Strauss, supra note 70, at 614-15. An example is the independent-counsel provision at issue in Morrison, under which the Attorney General was restricted to removal for good cause but Congress had no removal power. See Morrison, 487 U.S. at 701-03. Strauss deems this approach warranted under an antipolitics principle. See Strauss, supra note 70, at 614-15. Under this principle, Congress may limit presidential control of agencies to help ensure agency "free [dom] from political domination or control." Id. at 615 (quoting Humphrey's Ex'r v. United States, 295 U.S. 602, 625 (1935) (internal citation omitted)). Congress may, in short, determine that "certain types of decisions are preferably made in the absence of any political intervention, " whether congressional or presidential. Id. at 623.
95. See Schechter Poultry, 295 U.S. at 538-40; Panama Refining Co., 293 U.S. at 431-33.
96. Morrison, 487 U.S. at 703-07.
97. See, e.g., Lessig & Sunstein, supra note 6, at 102-03.
98. See infra note 146.
99. Cf. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844-45 (1984) ("If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.").
100. See 5 U.S.C. § 553(b)-(d) (2006).
101. Id. § 553(c).
102. See id. § 706.
103. Id. § 706(2)(A).
104. Id. § 706(2)(C).
105. See, e.g., Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
106. See id.
107. See id.
108. See Sierra Club v. Costle, 657 F.2d 298, 401-02 (D.C. Cir. 1981) (explaining that the Clean Air Act must be based on the record compiled and made public by the EPA).
109. See Posting of Cass Sunstein to The University of Chicago Law School Faculty Blog, What the Unitary Executive Debate Is and Is Not About, http://uchicagolaw.typepad.com/faculty/2007/08/what-the-unitar.html (Aug. 6, 2007, 17:34).
110. Cf. id. ("[A]s a matter of constitutional law, the president has considerable control over policymaking by executive agencies ... .").
111. Id.; see also Charlie Savage, Reaganites Reconsider, THE NATION, Sept. 24, 2007, at 5, 5 (quoting Steven Calabresi); Posting of Johnathan Adler to The Volokh Conspiracy, Defining the Unitary Executive, http://volokh.com/archives/archive-2007-08-12-2007-08-18. shtml (Aug. 12, 2007, 19:53).
112. Posting of Ilya Somin to The Volokh Conspiracy, Distinguishing the Scope of Executive Power From Its Distribution, http://volokh.com/archives/archive- 2007-08-12-2007-08-18.shtm#1187118574 (Aug. 14, 2007, 15:09).
113. 5 U.S.C. § 706(2)(A) (2006).
114. See Shane, supra note 40, at 207 ("[T]o a great extent, even the vesting of ultimate decisional authority in the President will not undo the ubiquitous possibilities that a complex bureaucracy affords to disavow responsibility for unpopular choices and to claim the chief credit for successes.").
115. See id. ("[F]or those who embrace categorical separationism as a constitutional reading, this problem [of the President's ability to deny responsibility] is exacerbated by their faith in executive privilege.").
116. In their paper for this panel, Professor Steven Calabresi and Nicholas Terrell indicate their shared concern with the overuse of executive privilege. See Calabresi & Terrell, supra note 30, at 1716 n.97. This is an important and potentially quite constructive point of agreement. Assuming that we agree on this point, however, there remain multiple ways discussed throughout this Article in which White House control over bureaucracy facilitates secrecy. See discussion infra Part II.A. Indeed, the very ease with which the President can invoke executive privilege-even should his claim fail in the unlikely case that it reaches a court-adds to such capacity for secrecy. See discussion infra Part II.A. Hence, while curtailing the scope of executive privilege would be a very important step and one for which those of us concerned about its abuse should strive, it is not sufficient to remove the dangers to transparency and accountability that inhere in a unitary executive.
117. See Michael Abramowitz & Amy Goldstein, Bush Claims Executive Privilege on Subpoenas, WASH. POST, June 29, 2007, at Al, A12 ("Democrats have charged that the administration's decision last year to fire nine U.S. attorney [sic] was tainted by politics and they have called for Attorney General Alberto S. Gonzales to resign . . . .").
118. 28 U.S.C. § 541(a) (2006).
119. See Dahila Lithwick, Alberto Gonzales, Zen Master, SLATE, May 10, 2007, http://www.slate.com/id/2165987.
120. See, e.g., Sheryl Gay Stolberg, Bush Moves Toward Showdown with Congress on Executive Privilege, N.Y. TIMES, June 29, 2007, at A23; Lithwick, supra note 119.
121. See, e.g., Lithwick, supra note 119. Another striking example hearkens back to the Reagan administration. As with the later U.S. Attorney controversy, much of the Iran-Contra controversy involved Congress's trying to determine who did what when and on what authority, and whether the President knew what was going on. THEODORE DRAPER, A VERY THIN LINE: THE IRAN-CONTRA AFFAIRS 275-76 (1991). John Poindexter, National Security Advisor to President Reagan, explained that he limited what he told the President so as to give him "future deniability." Id.
122. See Bressman & Vandenbergh, supra note 4, at 99.
123. Id. at 49.
124. See Shane, supra note 40, at 173.
125. Id.
126. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2341 (2006). Additionally, there is some em-pirical evidence to suggest that independent agencies are less likely to be influenced by the policy preferences of a President than are executive agencies. See Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 942-43 (2008).
127. See supra notes 54-56 and accompanying text.
128. See Kitrosser, supra note 54, at 887-89.
129. Shane, supra note 40, at 172-73.
130. Bressman & Vandenbergh, supra note 4, at 81.
131. 127 S. Ct. 1438 (2007).
132. Id. at 1460.
133. Linda Greenhouse, Justices Say E.P.A. Has Power to Act on Harmful Gases, N.Y. TIMES, Apr. 3, 2007, at Al.
134. See Janet Wilson, EPA Bides Time on Emissions Order, L.A. TIMES, Mar. 28, 2008, at A10.
135. Juliet Eilperin, White House Tried to Silence EPA Proposal on Car Emissions, WASH. POST, June 26, 2008, at A2; see also Barringer, supra note 3.
136. Eilperin, supra note 135 (internal quotations omitted).
137. Spencer S. Hsu & Carrie Johnson, White House Refuses to Release Documents on Air-Quality Policy, WASH. POST, June 21, 2008, at A4; Erica Werner, White House Asserts Executive Privilege in EPA Dispute, USA TODAY, June 20, 2008, http://www.usatoday.com/news/washington/2008-06-20-1499902489-x.htm?.
138. INSIDE WASH. PUBLISHERS, CLEAN AIR REPORT, BUSH PRIVILEGE CLAIM ON EPA RULES PROMPTS CONGRESSIONAL TEST (2008), available at 2008 WLNR 11928457.
139. See Barringer, supra note 3; Eilperin, supra note 135.
140. Eilperin, supra note 135.
141. Barringer, supra note 3.
142. See generally JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY (1987) (describing the rhetorical President as one who acts for the popular will).
143. See, e.g., Paul R. Pillar, Intelligence, Policy, and the War in Iraq, 85 FOREIGN AFF. 15, 16 (2006).
144. A 2002 conversation between an unnamed senior White House advisor in the Bush Administration and journalist Ron Suskind is telling in this respect. Suskind reports: The aide said that guys like me were "in what we call the reality-based community, " which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." I nodded and murmured something about enlightenment principles and empiricism. He cut me off. "That's not the way the world really works anymore, " he continued. "We're an empire now, and when we act, we create our own reality." Suskind, supra note 3, at 51.
145. See supra notes 19-23 and accompanying text.
146. See, e.g., Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting); Shane, supra note 40, at 162 (discussing that under unitary executive theory, as espoused in the Reagan and first Bush administrations, "the President enjoys plenary authority over all policy making involved in the execution of the laws"); Christopher S. Yoo et al., The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601, 607 (2005) (referring to the unitarian mandate of presidential control over "policy-making" officials and activities).
147. In Bowsher v. Synar, a decision generally praised by unitarians, the Supreme Court appears to suggest that jobs consisting solely of research and analysis might not be executive in nature. 478 U.S. 714, 733 (1986) (deeming the Comptroller General an executive officer based not on the fact that he compiles a report on necessary budget cuts but on the fact that the conclusions in his report bind the President); see also Lessig & Sunstein, supra note 6, at 114 (suggesting that providing information alone might not be an executive task); Prakash, supra note 6, at 793 n.530 (same).
148. Juliet Eilperin & R. Jeffrey Smith, EPA Won't Act on Emissions This Year, WASH. POST, July 11, 2008, at Al.
149. See, e.g., Croley, supra note 9, at 824-25 (describing OMB review of rule making); Peter Strauss, Foreword, Overseer or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 732-33 (2007) (citing recent changes to OMB review of rule making).
150. Andrew C. Revkin, Cheney's Office Said to Edit Draft Testimony, N.Y. TIMES, July 9, 2008, http://www.nytimes.com/2008/07/09/washington/ 09enviro.html?.
151. MARK BOWEN, CENSORING SCIENCE 3, 227 (2008).
152. Id. at 227.
153. Id.
154. Id. at 228.
155. See Revkin, supra note 150.
156. Andrew C. Revkin, Bush vs. the Laureates: How Science Became a Partisan Issue, N.Y. TIMES, Oct. 19, 2004, http://www.nytimes.com/ 2004/10/19/science/19poli.html?.
157. See, e.g., BOWEN, supra note 151, at 16-17, 66-68, 93-94, 116, 134; Revkin, supra note 156.
158. BOWEN, supra note 151, at 93-94; see also id. at 116 ("[I]t is unusual for the two highest positions in public affairs [at NASA] to be filled by 'politicals." ').
159. Id. at 16-17, 49-50, 67-68, 81, 116-17, 119, 123-28, 136, 140-41.
160. Id. at 15-16, 34, 36, 49-50, 56, 124.
161. Id. at 117.
162. See generally TIMOTHY DONAGHY ET AL., UNION OF CONCERNED SCIENTISTS, ATMOSPHERE OF PRESSURE: POLITICAL INTERFERENCE IN FEDERAL CLIMATE SCIENCE (2007); UNION OF CONCERNED SCIENTISTS, INTERFERENCE AT THE EPA: SCIENCE AND POLITICS AT THE U.S. E NVIRONMENTAL PROTECTION AGENCY (2008) [hereinafter INTERFERENCE AT THE EPA]; H. Josef Herbert, EPA Scientists Allege Political Interference, ST. LOUIS POST-DlSPATCH, Apr. 24, 2008, at A3.
163. Herbert, supra note 162; see also INTERFERENCE AT THE EPA, supra note 162, at 2.
164. THE FEDERALIST NO. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961).
165. See supra notes 6, 25-32 and accompanying text.
166. See Bowsher v. Synar, 487 U.S. 714, 733 (1986).
167. See Prakash, supra note 6 at 1014-15. Lessig & Sunstein seem more definitively to embrace this conclusion. Lessig & Sunstein, supra note 6, at 114.
168. Saikrishna B. Prakash, Fragmented Features of the Constitution's Unitary Executive, 45 WILLAMETTE L. REV. (forthcoming Apr. 2009).
169. Id.
170. See generally Kitrosser, supra note 12.