Restraining the Energetic Executive: Can Administrators Legitimately Check Presidential Power?

Abstract

The strong “unitary” executive dominates present theory and practice regarding presidential power. A particular focus of continuing debate about the theory concerns the extent to which presidents control discretion in determining what the law means and how it is to be executed, and whether other executive officials can exercise a check on such presidential discretion. I review the scholarly debates about the historical, constitutional underpinnings of strong unitary executive theory claims about presidential control and direction of subordinate executive officials. Strong unitary executive theorists claim validation in particular from the Decision of 1789 and the establishment of a presidential removal power based on responsibility to popular will. I consider the consequences of that validation in our own time, which include weak legal checks on presidential discretion and normative confusion about the legitimacy of administrative resistance to questionable presidential commands. I conclude by sketching several potential remedies, from modest to radical, to bolster administration as a barrier to an overly-energetic executive posing a threat to the stability of the republic.