Wither the Unitary Executive

It’s a pun, relax, I know how to spell.

The GOP’s new “Pledge to America” — hilarious for its utter abandonment of the principle of fiscal responsibility that’s supposed to animate its core — makes another obvious error by calling for Congressional approval of any regulation with a potential price tag in excess of $100 million. Set aside Politico‘s clearly correct note that it’ll never see implementation: the measure, if passed by a Republican Congress, would be unconstitutional as an infringement on executive power.

There are some hard questions in the law of separation of powers. But an easy one, and one that “unitary executive” thinkers have gotten right in the past, is that Congress has no legislative veto over the President’s administrative powers. This is true even if Congress created the agency over which the President acquires plenary power. The Founders simply never considered, and never wrote, such a check into the system. Call theirs a casual, shallow constitutionalism, especially for a movement supposedly predicated on a return to foundational principles.

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One comment

  1. “… it’ll never see implementation: the measure, if passed by a Republican Congress, would be unconstitutional as an infringement on executive power.”
    Are you kidding? This court? A reckless thing to say, given recent history.

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