Nicholas Almendares (Indiana University Maurer School of Law) has posted Unitary Enforcement on SSRN. Here is the abstract:
Enforcement is an essential part of law. Yet, increasingly Congress has no say over it. A full-throated embrace of the unitary executive theory by the Supreme Court has combined with other doctrines to push ever more power over enforcement to the executive branch—to the President. The Roberts Court has simultaneously empowered the President while eliminating Congress’ tools to steer, or circumvent, government action. When it comes to enforcement, all roads now lead to the President.
This Article traces the cumulative consequences of these doctrines. It highlights the interrelated nature of law: on their own these doctrines are important. Take together, they have remade the separation of powers, aggrandizing the executive and judiciary at the legislature’s expense. The Supreme Court has thus contributed to congressional dysfunction, making it harder and more costly for the legislature to do anything of consequence. And there is little Congress can do to rectify this state of affairs. These doctrines are constitutional, and they find a willing and able ally in the President, their main beneficiary. Congress’ options are limited, but there are some creative solutions still available. The most promising of which is, surprisingly, Congress turning to the states for help against the other two branches.
Highly recommended.