The unitary executive is one legitimate answer to a fundamental challenge of American republicanism: How do we protect liberty and popular sovereignty while giving the state sufficient authority and efficiency to govern well? There are illegitimate answers, like contemporary federal arrangements that allow for a collection of muscular, independent agencies that sit above or between the branches. That approach violates republicanism by expanding government authority and efficiency at the expense of a limited state and democratic control.
A more interesting question, in my view, is whether there are other legitimate systems that are as good or even better than the unitary executive at responding to America’s unique characteristics. I think there may be. This is why I see the unitary executive as an answer, not the answer, to shaping the executive branch in a democratic republic.
Designing a Republic
Imagine you’re entirely new to issues of governing. If your instinctual priority was the preservation of liberty, and your only knowledge of political theory came from some of the most famous Federalist Papers (say #37, #39, #47, #48, #51), you would likely want to maximize the separation of powers and ensure all state authority could be checked by the people. Unaware of the possibility of a bill of rights, you’d believe that democracy and the wide distribution of power are the keys to maintaining freedom.
If you were then shown the structure of state governments today, you’d be optimistic about the state of liberty. Government authority is allocated among a variety of officials directly elected by the people, preventing a single demagogue with authoritarian proclivities from consolidating power. Depending on the state, the list could include legislators, governors, judges (including state supreme court justices), attorneys general, treasurers, state superintendents, agriculture commissioners, state board of education members, secretaries of state, comptrollers, insurance commissioners, public university regents, and more. Moreover, states’ use of initiative, referendum, and recall further democratizes and distributes authority. And in many states, executive-branch regulations (a way authority could be centralized and insulated from democratic forces) are subject to legislative oversight. State governments, you’d conclude, must take liberty seriously because they sure take the separation of powers and democracy seriously.
But if you were then shown the US Constitution, you’d probably conclude that liberty was constantly threatened by Uncle Sam. The federal government’s authorities, by comparison, are barely separated, and democratic control is attenuated. Members of one house of Congress get six-year terms. Federal judges aren’t elected; they’re appointed and confirmed through an insulated process. A single president (a “unitary executive”) has all of the executive-branch authority, potentially enabling the rise of a demagogue. Moreover, the president is picked indirectly by a curious electoral college. There’s no initiative, referendum, or recall, and there’s no requirement of legislative approval of agency rules.
After considering the enormous powers of the federal government, you’d probably start to imagine all of the ways federal authority could have—actually, should have—been further separated and democratized. That is, Washington has powers that states don’t, especially those related to war, treaties, international trade, interstate commerce, and currency. And Washington, thanks to the Supremacy Clause, the Commerce Clause, and the Necessary and Proper Clause, would be able to constantly expand its reach. You might find yourself in favor of adding new houses to Congress, for instance, to focus solely on international matters or appropriations. You might argue for electing federal appeals court judges or Supreme Court justices; maybe splitting Article III into multiple independent court systems, for example, demarcating different verticals responsible for civil, criminal, original-jurisdiction cases, appellate cases, state-originated cases, and so on. And you might believe that the US attorney general, secretary of state, and secretary of the treasury should be elected.
This list of structural changes is the way, you’d probably reason, to ensure American liberty at the federal level: Maintain the three-branch structure but distribute authority among a wider array of entities controlled by the people.
Lastly, imagine you were told that during the Progressive-New Deal era, federal arrangements had, in fact, been altered via statute. You’d probably smile and wonder which of the reforms you’d envisioned had been adopted. Think of your shock when told that, no, Uncle Sam had gone in an entirely different direction: He created a genus of entities floating between the branches and insulated from democratic control.
It would be nearly impossible to understand how this happened. Unless you then learned something about republicanism and technocracy.
Reifying Republicanism
The framers of state constitutions and the US Constitution were not just liberals. They were republicans. They believed in preserving freedom, of course. But they also understood that the common good of the people required entrusting democratically legitimate officials with public duties and meaningful public authority. This is made clear, as Professor Rogers notes in his very good essay, across the Federalist Papers; those statesmen, Hamilton in particular, were aware of the need for governing energy. Harm would be done by the state’s doing too much and too little. As such, constitutions were not merely a list of limits on governmental power; they also included lists and assignments of responsibilities and authorities. Individual liberty could be protected largely, they believed, by smartly arranging strong institutions.
Populism arises when the people believe that those in power care about their own interests and not those of the public.
In this context, we can see that the difference between the high level of democracy and power-separation in state constitutions and the lower level in the federal constitution is a simple matter of reifying republicanism in different ways. Both wanted governments strong enough to accomplish public goals. State constitutions were willing to give governing power to a wider variety of entities (including via a “plural executive” model), believing the fragmentation of authority, plus the direct democratic power of the people, would prevent despotism. Rogers aptly describes this as “horizontally” partitioning executive power. The federal constitution was structured with fewer loci of power, but these strong branches would check each other and could directly or indirectly be checked by the people.
Said another way, there is not a single “republican” method of arranging governing institutions. But republicanism does require that institutions check one another and that the governed are in control. As such, American republicanism, I believe, would not be violated by a constitutional amendment that allowed the people to recall the president, or one that subjected US Supreme Court justices to retention elections, or one that made the US attorney general an elected position. Those may not be wise, but they are not anti-republican.
What is anti-republican, however, are democratically unaccountable governing entities that sit above or between our branches of government. Here, I believe Rogers and I are simpatico.
Technocracy’s Cure
The Progressive-New Deal period was America’s least republican era. For a host of political, cultural, and technological reasons, many leaders soured on democracy and political experience and became enamored with an elite understanding of education and expertise. This turn to technocracy wasn’t limited to installing a different type of official inside our existing system. It aspired to change the system itself. Indeed, the creation of that era’s independent agencies can’t be understood in republican terms. They weren’t devised to protect liberty or strengthen popular control. Quite the opposite. They were designed to enable ostensible experts to lead swaths of public life independent of the voters and often the president. (Rogers, I think, would agree with this assessment, and I think we both believe this turn was bad for America.)
For these reasons, the application of the unitary executive theory to today’s federal government should be seen as a practical, republican response to the misguided technocratic impulses of a century ago. My assessment here is meant as a two-cheers endorsement of that theory. It addresses two major problems. It properly identifies as unconstitutional Congress’s creation of entities that sit between the branches and exercise quasi-legislative, executive, and judicial powers. Second, it recognizes that the people must be able to hold government entities accountable, and since the president is the electorally accountable official of the executive branch, agencies with executive functions must be accountable to the president. I believe Rogers and I agree on these points; in fact, I share his commitment to democratic accountability, the core of his essay.
I withhold one cheer from the unitary executive theory because while it is an appropriate response to this particular federal problem, I’m not convinced that it should be applied any more broadly. That is, I don’t believe American republicanism requires all executive power to be invested in a single figure. In other words, a unitary executive is a legitimate republican form, not the legitimate republican form. Rogers might disagree.
However, in full disclosure, as a practical matter, I’m not a big fan of the plural-executive model used by many states—where executive functions are parceled out among an array of elected officials. My experience is that this can hinder, even debilitate, the executive branch. As just one example, an elected state superintendent, an elected governor, and an elected attorney general can take different positions on an education matter, which can confuse educators and families, and worse, end up in a years-long court battle. Rogers may agree.
Then why would I not, as a practical matter, wholeheartedly support the unitary executive? Because what I see as the plural executive’s messiness and inefficiency might well be a natural antidote to populism. And populism is bedeviling American society and governing.
Populism arises when the people believe that those in power care about their own interests and not those of the public. Populism sustains and grows when the people have limited capacity to set things right. I believe we are in an era of perpetual populism because a suite of factors (changes in the economy, technology, culture, governing, etc.) have caused the people to feel powerless. Rogers and I both see a link between governing arrangements and populism; he writes, “One driver of modern populist politics, particularly on the right, is the feeling that vast sections of the national bureaucracy are immune to electoral outcomes.”
I’m in favor, at least in this unusual moment, of enabling voters to engage in more debates about more public policies and hold more public officials accountable. So, as it stands today, I would not invoke the unitary executive model at the state level as a way of consolidating power in the hands of fewer state officials and reducing the number of democratically elected state offices.
I would, however, happily invoke the unitary executive model at the federal level to enable the democratically accountable president to control any currently unelected, unaccountable independent agencies.