Comment by Amezarak | Hacker News Reader

Comment by Amezarak | Hacker News Reader

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Thank you for the link. I will certainly give it a read but I'm sure the HN thread will be long dead by the time I read and absorb it.

My main beef with the tenor of this whole thread in general is people do not seem aware of the historical rises and falls in executive power. For example, perhaps they did not call it a "unitary executive" then, but the executive power surely reached its zenith under FDR, with all sorts of behaviors and actions we would regard now with boggled eyes and before which even Trump's more radical actions tend to pale. [Perhaps most applicable to this thread, FDR openly wielded the power of the 'independent' FCC to silence his opposition, to the point where NBC and CBS felt compelled to announce they "would not air any broadcast that was in any way critical of any policy of the Administration.".] Everything worked out OK.

Ironically, of course, that's also the guy who was probably most responsible for the explosion of the size of the administrative state - he really, in a meaningful sense, refounded American government. And while there was good and obvious reasons for the immense expansion of the administrative state, and I'm open to legal reasons either way, I'm becoming increasingly convinced that there's really good social reasons to not have "independent" agencies - I suspect more direct democratic input (the President does X) nets out better in terms of social trust and cohesiveness even when it makes often much dumber decisions.

The unitary executive approach is pretty extreme. In one recent opinion before they pulled the trigger, Roberts court admitted that they could have reigned in the excesses that followed Humphrey's Executor, implicitly admitting its fundamental reasoning was well grounded. That was quite an admission because Roberts had been championing the unitary executive since the 80s.

In fact, few legal scholars dispute that the executive power is unitary, though they might disagree on the implications. As Humphrey's explained in detail, the issue is about areas of the government where the executive nominally overseas work that has a congressional or judicial character. For example, administrative judges and Federal prosecutors exercise a kind of judicial power. And the whole Federal Reserve exception SCOTUS quickly formally carved out is because the Fed exercises a kind of congressional budgetary power.

Humphrey's said that when an agency or officer is exercising a non-executive power, Congress can limit the president's control over how it can be exercised, including reasonable limits on the president's ability to fire the officer.

Ignoring unitary executive proponents like Thomas who choose to ignore the ambiguous intentions of the constitutional drafters, or the early history of the first congresses actually limiting some executive power over officers, people like Roberts primarily argue that Humphrey emphasis on the character of the power is just too difficult for the courts to police; they want a brightline distinction defined by whether the office is nominally under the executive branch, even though that approach is in tension with the actual, if equivocal, original meaning of the constitution. But not too brightline, because letting the president control the Fed was a bridge too far. So they created that exception which clearly is rooted in the same logic as Humphrey's, but they (ironically) pretend it's just something they pulled out of thin air as a one-off.

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