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Congressional Usurpation of Executive Power

Is the modern President a unitary executive, as envisioned by the Founding Fathers? Professor Saikrishna Prakash argues that the Congressional establishment of authoritative administrative agencies has stripped away executive power that rightfully belongs to the President. Commissioners at important agencies are essentially immune from Presidential removal although their job is to enforce the laws passed by Congress, thus exercising executive power. https://youtube.com/watch?v=hUXJStW2_rk


We see the President stretching and straining in foreign affairs. With respect to executive branch officers and executive control of law execution, we've actually seen the reverse of that to some extent. Congress has created many agencies that independently execute the law. I'm talking about the alphabet agencies, the Securities and Exchange Commission, a.k.a. the SEC, the Federal Trade Commission, a.k.a. the FTC, the Federal Election Commission, the FEC. These entities are meant to be independent of the President, or usually thought to be independent of the President. They're run by multi member commissions with staggered boards. These commissioners typically have removal protections, meaning the President can't remove them at will. The President usually has to show cause of some sort of inefficiency, neglect of duty or malfeasance. This structure, which is multi member commissions, and this four cause protection, is meant to insulate them from Presidential control. Essentially you have what I would call executive officers, because that's what these folks are often doing, they're executing statutes passed by Congress, that aren't really subordinate to the President. They're basically a mini President, or a mini executive in the form of a counsel, where Congress has stripped away part of the executive power and vested it in these folks. They're meant to act independent of the President, and they do for some period of time. Eventually the President appoints enough people where those commissions more closely reflect the President's preferences. If you can appoint people, and the people on the commission have limited terms, eventually you will get a commission that more closely reflects your preferences. It's not because you can fire them, it's because you are basically putting on new people that you think will be more respectful of your agenda, and perhaps more loyal to it. This is a significant inroad. The Constitution, the Founding Fathers wanted to have a unitary executive. They wanted to vest executive power in one person, rather than the many. They didn't want to have a plural executive of the sort that existed in state constitutions. Now Congress has re-created the plural executive in the form of these commissions and essentially divorced the President from these commissions, at least in part. And that's a significant inroad into executive power, because Congress can essentially balkanize executive authority across any number of areas. If you have someone executing the law they are, at least insofar as they do that, partly executive.

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