Republican administrations going back to George W. Bush have asserted the “unitary executive” theory—the idea that the Constitution places the entire executive branch under the authority of one elected president.
That means the president must be able to entirely control the executive branch, direct executive-branch officials and, generally, remove those who refuse to carry out his policies, including officers whose appointments required Senate confirmation.
In Trump v. Slaughter, the Supreme Court has now mostly affirmed that theory. The court struck down the law that allowed Federal Trade Commission commissioners to be removed only for cause, concluding that officials exercising executive power must ultimately remain accountable to the president. That is almost certainly the correct constitutional decision.
But Justice Neil Gorsuch joined the decision with a warning.
For nearly a century, Congress has built a gigantic administrative state on the assumption that many federal agencies were “independent” of presidential control. Congress has delegated to these agencies powers that look remarkably like legislation, allowing bureaucrats to write rules governing private conduct. It has also given agencies judicial-like powers, allowing them to investigate, prosecute and adjudicate cases within their own bureaucracies.
All of that was questionable enough when these agencies were supposedly “independent.”
Now the Court has concluded that the president controls them.
As Gorsuch put it, the so-called fourth branch of government may no longer be independent, but its enormous powers have not disappeared. They have simply been reassigned to the president.
That is Gorsuch’s warning.
It would have been one thing had Congress created these agencies from the beginning with the understanding that all their accumulated power would be controlled by one person. Congress might have delegated less. It might have written narrower laws. It might have retained more responsibility for making policy itself.
Instead, Congress spent decades transferring legislative and judicial powers to supposedly independent agencies. That was a violation of the nondelegation doctrine, but that’s another topic. Now, after the administrative state has accrued enormous powers, the court has given the president total control.
The constitutional answer is not to deny that the president controls the executive branch. The answer must be for Congress to reclaim the powers it should never have delegated.
And that is the frightening part: Congress isn’t doing much of anything these days.