Legislative Delegation, The Unitary Executive, And the Legitimacy of the Administrative State (Separation of Powers in American Constitutionalism‪)‬

Federalist Society constitutionalists frequently launch two critiques of the modern administrative state. One, the nondelegation critique, challenges the now-customary breadth of legislative delegation to the executive branch. (1) The other, the unitary executive theory, challenges congressional attempts to diffuse executive branch policymaking power at levels below the President. (2) The Emergency Economic Stabilization Act of 2008 (3) is a dramatic target for the first critique. Agencies whose heads are insulated from direct presidential policy control, like the Federal Trade Commission (FTC), (4) are clear targets for the second. If we focus separately on the government design variables at the heart of each of these critiques, one can imagine four different ways, shown in the table below, in which those variables might shape the administrative state. One axis of the table describes two contending positions on Congress's capacity to structure the allocation of power within the executive branch. That authority could be broad, encompassing significant congressional power to decide who gets to determine matters of administrative policy. Or, following unitary executive theory, Congress's power could be narrow; once Congress vests policymaking discretion in the executive branch, the President has plenary power to command that discretion no matter where Congress formally conferred it. The other axis of the table is Congress's capacity to delegate policymaking power to the executive in the first place. At one pole is current doctrine, under which there is virtually no enforceable limit on legislative delegation. At the other is the strictly policed nondelegation position that Professor Gary Lawson advocates. (5)