Ernest Young (Duke University School of Law) has posted The Unitary Executive and Congress’s Options in Delegating Power to Enforce Federal Law on SSRN. Here is the abstract:
The central separation of powers issue of our time is the tension between ensuring democratic accountability of the administrative state and checking the ever-growing power of the President. The first is often thought to be achievable only through the unitary executive—that is, by subordinating all of the federal administrative state to an elected President. But the seemingly unavoidable cost of that prescription is to supercharge the President’s personal power by forbidding Congress to shield elements of the bureaucracy from direct presidential control. The Supreme Court’s recent decision in Trump v. Slaughter, which held that all officers exercising executive power must serve at the President’s pleasure, gave new urgency to this dilemma.
This article proposes that at least a partial solution has been hiding in plain sight. Congress retains—and has long exercised—the power to delegate authority to administer and enforce federal law outside the executive branch altogether to states and private persons. Most federal regulatory and benefit schemes are cooperative federalism arrangements under which states exercise a great deal of discretion in implementing and enforcing federal law. And a broad range of federal statutes in securities, antitrust, consumer protection, environmental law, and more employ private attorneys general to supplement governmental enforcement. These arrangements do not violate the unitary executive principle because states and private actors do not exercise the executive power “of the United States.” And they offer a degree of independence far beyond that of traditional independent federal agencies. The existing diversification of federal enforcement should allay fears about the demise of Humphrey’s Executor and also point the way for further legislative reform.
Highly Recommended!
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