Benjamin L. Cavataro (Wayne State University Law School) has posted The Two-Hat Problem, Columbia Law Review (forthcoming), on SSRN. Here is the abstract:
When one person simultaneously holds two or more executive-branch offices, power can concentrate in ways that threaten constitutional structure, democratic accountability, and effective governance. This Article, the first comprehensive account of “dual-hatting” within the federal executive branch, makes three contributions. It defines the practice with precision; documents its historical prevalence, distinguishing benign from dangerous forms; and assesses its constitutional, democratic, and functional implications. This Article first defines dual-hatting, then documents an alarming rupture from historical practice. For most of American history, from the Founding through 2024, the most aggressive forms of dual-hatting—high-level officers holding multiple roles across agencies—were rare. When such episodes occurred, it was often with the Senate’s express consent. The second Trump administration, however, has deployed dual-hatting in an altogether different way. Since January 2025, Cabinet secretaries, agency heads, and other high-level officers have been granted double, triple and even quadruple roles with and across disparate agencies. This Article then develops a typology of dual-hatting’s distinctive harms, which exceed the baseline harms of vacancies and acting officials. When pursued aggressively, dual-hatting can become a tool of executive aggrandizement that impinges on Congress’s constitutional office-creation authority, facilitates the unilateral dismantlement of agencies by presidents, and incentivizes presidents to circumvent Senate advice and consent. It erodes accountability by obscuring lines of responsibility, eliminating crucial internal executive-branch checks, and enabling conflicts of interest. And it strains officials’ functional capacities and weakens institutional stewardship. Finally, this Article contends that a president’s deployment of dual-hatting with the intent to evade constitutional constraints constitutes a form of faithlessness under Article II’s Take Care Clause and Oath Clause. It proposes graduated statutory reforms keyed to office type and function: banning triple-hatting entirely, prohibiting dual-hatting at the Cabinet level, restricting cross-agency dual-hatting for Senate-confirmed officers absent Senate consent, and limiting dual-hatting for lower-tier officers, consistent with germaneness and incompatibility principles. Such reforms, if enacted, could constrain dual-hatting’s most dangerous abuses, while preserving flexibility for legitimate needs.
Highly recommended.