Unitary Executive and Independent Agencies

Article II of the United States Constitution provides that “The executive Power shall be vested in a President of the United States of America.” This declarative statement gave rise to a theory of U.S. constitutional law that posits the President should have control over the entire executive branch. This theory has been given increasing attention with the rise of the administrative state. Some argue that the President does not have enough direct power over executive branch agencies, and that this is a violation of the clear statement in Article II Section I of the Constitution. Others argue that allowing the presidency more power would lead to a more dictatorial executive branch, and lead to a weakening of democracy. Proponents of Unitary Executive Theory respond to this concern by arguing that the absence of a unitary executive undermines democracy because without it democratically elected presidents lack the power to enact the policies that the American people elected them to enact, and instead can be stymied by unelected members of the administrative state. Critics of the Unitary Executive Theory assert that the expertise and insulation from political processes necessary to efficiently run government can be found only in the administrative state. The issue has been further complicated by the increased frequency of inter-agency litigation in the form of different executive branch agencies inhabiting both sides of Supreme Court cases. Proponents of the Unitary Executive theory wonder whether an executive branch divided to this extent is what the founders envisioned while writing Article II.

Featuring:
-- Prof. William Buzbee, Professor of Law, Georgetown University Law Center
-- Hon. Daniel Gallagher, Deputy Chair, Securities Department, WilmerHale and former Commissioner of the SEC
-- Hon. Maureen Ohlhausen, Partner, Baker Botts LLP, and former Commissioner of the FTC
-- Prof. David Vladeck, A.B. Chettle Chair in Civil Procedure, Georgetown University Law Center, former Director of the FTC's Bureau of Consumer Protection