The surest way to ruin a bipartisan dinner party is to say the words “unitary executive.” Liberals are likely to respond: “To give a president (especially one as capricious as Trump) total control over the executive branch is a recipe for tyranny — for a king who rules by whim and will alone.”
To which conservatives will respond by quoting Article II’s Vesting Clause: “Article II is clear as day, ‘the executive power shall be vested in a President.’ The alternative is rule by bureaucrats (have you forgotten Biden’s aggressively partisan absentee presidency?), and that too is a recipe for tyranny — for an unaccountable oligarchy.”
This debate never seems to persuade anyone. Liberals have become convinced that a unitary executive is the end of the separation of powers. And conservatives have become convinced that liberals want unaccountable bureaucrats to rule the nation.
The reason nobody is ever persuaded is that neither side sees the debate clearly. The debate only appears to be over the claim that all executive power vests in the president when, in truth, the debate is over the appropriate remedy to the problem of legislative power vesting in the president.
The Constitution, of course, doesn’t give any legislative power to the president. Article I provides that “all legislative power herein granted shall be vested in a Congress of the United States,” and the Tenth Amendment reserves all remaining powers “to the States respectively, or to the people.” Yet the modern executive branch is legislative. It is, in fact, a more active legislature than Congress. While Congress creates a few hundred laws per year, the executive branch creates a few thousand. And while Congress tends to legislate only at a high level on major issues, the executive branch also legislates fastidiously on minute issues, from the dispersion of holes in Swiss cheese to the amount of water that flows through showerheads. Over this vast legislative apparatus sits the president who wields significant — but not total — control over the policies it sets and the laws it promulgates to realize them.
So when liberals hear conservatives say that the president should have total control over the executive branch, what they often hear is that the president should be a unitary lawmaker. That explains why one New York Times journalist erroneously described unitary executive as “reject[ing] the idea that the government is composed of three separate branches.”
Liberals are right to fear a unitary lawmaker. A unitary lawmaker is likely to be a tyrant, unless he’s an angel, and men never are. But even the best man would likely be a worse lawmaker than a group of men, because a group is likely to be more thoughtful and deliberative, and, by virtue of numerosity, less susceptible to capture by what James Madison called “faction” — groups eager to wield power for their own narrow benefit rather than for the common good.
Liberals who fear a unitary lawmaker can count the Founders on their side. The Founders knew that if factionalism infected government, no one could trust that the laws would give him justice, and politics would become what my colleague Paul Ray colorfully calls “a death-struggle for the controls of the Death Star.” The Founders knew, too, that factions would always exist. They did not expect men to be angels but aimed to control the effects of factionalism by pitting factions against each other both vertically (between the states and the federal government) and horizontally (among the states and among the three branches of the federal government).
Congress is especially designed to balance faction against faction. Its hundreds of members are elected by varied regional, cultural, economic, and religious coalitions, and no one member can wield legislative power alone. “Extend the sphere,” wrote Madison, and “you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, to act in unison with each other.”
A unitary legislature, by contrast, shrinks the sphere and breaks the balance. A unitary legislature need not compromise or deliberate. No ambition checks its own ambition. It can legislate favors to whatever faction it likes and burdens to whatever faction it dislikes. President Biden’s repeated attempts to cancel college-educated voters’ loans are one example; President Trump’s suspension of the law forcing TikTok’s Chinese owner to divest is another.
If a unitary legislature also wields executive power, factionalism is likely to bleed over from one power to the other, so that a president who can legislate for the benefit or detriment of factions will also execute the laws for the benefit or detriment of factions. Biden’s selective enforcement of the FACE Act to punish pro-life protestors but not to punish vandals of churches and pro-life pregnancy centers is one example; Trump’s enforcement of civil rights laws against some universities but not others is another.
Mix factionalism in writing laws with factionalism in executing them, and you will have brewed the perfect poison to kill faith in impartial justice, which is the lifeblood of the rule of law. This is what liberals fear when they hear “unitary executive.”
But conservatives don’t support brewing that poison. Arguably, conservatives tend to be even more faithful defenders of the rule of law, given their keen sense of its fragility and their deep sense of gratitude to their forebearers who fought for and sustained it. By philosophy and temperament, they are less likely to be tempted to sacrifice principle for the promise of progress. Sure enough, one finds no end to conservative criticisms of unitary lawmaking. Many conservative criticisms of the administrative state sing in this key. And most (but not all) legislation aimed at retaking Congress’s lawmaking power from the executive branch comes from Republicans.
So when conservatives respond to liberals by pointing to Article II’s vesting clause, they’re saying that America already has a unitary lawmaker in the administrative state. Administrative agencies exhibit none of the benefits of Congressional lawmaking and all the detriments of a unitary lawmaker. They deliberate only with themselves, no ambition checks their own, and they are subject to capture by ideological factions (thus the criticism that bureaucrats are overwhelmingly progressive) and economic factions (thus the criticism of the revolving door between government and industry). On top of all that, the American people cannot elect or fire the bureaucrats or otherwise exert any meaningful control over the content of the laws they make.
The best solution to this problem would be to end administrative lawmaking. For that reason, conservatives want to revive the nondelegation doctrine, force Congress to oversee agency rulemaking, and make the president a true executive once again. Yet these seem like pipe dreams, and so conservatives settle on bureaucratic accountability through the president. Yes, it’s bad to have a unitary lawmaker, but given the choice between an unaccountable one and one that they can kick out of office every four years, they pick the latter.
It should be clear by now that both the liberal solution — independent bureaucrats — and the conservative solution — presidential control of bureaucrats — are second-best solutions to the problem of unitary executive lawmaking. Yes, there are some liberals who follow Woodrow Wilson and believe that representative lawmaking should be largely replaced with bureaucratic rule, but most would probably be delighted if Congress retook its lawmaking primacy. After all, this would generate more stability, more compromise (and the legitimacy that compromise brings), and more room for the president, as a true executive, to “unite in himself the confidence of whole people” instead of just his most ardent supporters. In short, if Congress reasserted itself, the fight over the unitary executive would largely melt away because the president would only enforce Congress’s laws. And he would be more likely to enforce those laws equally, neutrally, and for the common good. Most Americans would probably be happy with that.
But both liberals and conservatives have written Congress off, settling instead on second-best solutions. Liberals argue that greater bureaucratic independence from politics is the second-best solution because they trust bureaucrats to be less-partisan than the president. Conservatives, on the other hand, argue that presidential control over bureaucracy is second-best because it creates some measure of representative government, some measure of political accountability.
Which side has the better argument is a question for another article, the point here is only that both sides agree on more than they think. Because both sides have concluded that the best solution is not feasible, they spend their time fighting over second-best solutions. Perhaps if they realized that they were, in fact, in broad agreement about the problem they were trying to address, they might find more success joining forces and fighting for the solution they agree is best: re-vesting the legislative power in Congress.
