Harold J. Krent (Chicago-Kent College of Law) has posted From a Unitary to a Unilateral Presidency (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
President Bush's administration has been accused of creating a unilateral presidency. He has disdained allies and refused to use Congress as a partner in fashioning national policy. Less remarked upon, President Bush's claims of broad powers have marginalized not only international entities and Congress, but other actors within the executive branch. More than any recent President, he has attempted to route all authority delegated by Congress to the executive branch through his Office.
This essay assesses President Bush's conception of the unitary executive in the administrative sphere. Based on President Bush's signing statements and executive orders, it concludes - contrary to a leading account - that President Bush's view of the unitary executive in the administrative sphere is extreme even by comparison to that forwarded by his father, and Presidents Clinton and Reagan. In short, President Bush apparently has theorized that the President, as the officer at the apex of Article II, must be the principal decisionmaker for all authority vested by Congress in the executive branch, irrespective of Congress's choice of delegate. According to President Bush, the President under Article II retains the authority to supplant the discretion vested in officers inferior to him and exercise that authority directly. To that end, he has decried congressional efforts to delegate final authority to subordinate executive branch officials, lambasted congressional efforts to seek proposals for new legislation directly from subordinate officers in the executive branch, and deployed regulatory policy officers to oversee the administrative work of agency officials appointed by the President and approved by the Senate. President Bush's views are coherent, yet radical in expanding the unitary executive ideal beyond what had been asserted by his predecessors. To President Bush, Article II demands not merely a unitary but a unilateral presidency in that all authority delegated by Congress must be funneled through the President.
The essay then explores the potential ramifications of such a sea change in the unitary executive vision. The Bush perspective would jeopardize so-termed independent agencies, undermining the independence critical to agency adjudication and to a lesser extent rulemaking. Moreover, the Bush theory would obviate the President's need to remove from office officials who failed to follow his policy for he could simply exercise the duties himself. Furthermore, it might permit the President carte blanche in reorganizing the executive branch and thereby blunt Congress's interest in creating offices and delegating particular tasks to officeholders. In sum, President Bush's view demeans the role of presidential appointees approved by the Senate and threatens to seal off much of the executive branch from dialogue with Congress.