Kovacs on the Rise of the Unitary Executive

Kathryn E. Kovacs, Rutgers School of Law, has posted Rules or Rulers? The Rise of the Unitary Executive:

The unitary executive is no longer a theory; it is real. The President operates on the premise that, because all executive power is vested in him, his appointees merely assist him in performing his constitutional duty. The rise of the unitary executive is not a new phenomenon, but it has reached a new pinnacle. This article demonstrates that among the contributing causes to that climb are the judicial rules about rulemaking.

The provisions governing agency rulemaking in the Administrative Procedure Act of 1946 are barebones. Congress intended to leave much to agency discretion, preferring agency decisionmaking to the autocracy recently defeated in Europe. In the 70 years since then, Congress has not revised the APA’s rulemaking provisions significantly. In the absence of legislative updating, the courts stepped in and imposed rulemaking requirements that contradict the APA’s text and history. Rulemaking has become difficult at least in part due to the increasingly onerous judicial rules about rulemaking. As a consequence, agencies are unable to respond to elections and changed circumstances in a timely and effective manner. In recent years, as Congress and agencies have lost their policymaking agility, the President has stepped in to make key decisions himself.

The judicial rules about rulemaking were well intentioned, but their unintended consequences have reached a frightening extreme. Our nation is moving toward the kind of executive authoritarianism the APA was designed to avoid. The courts should retreat and take refuge in the text and history of the APA until Congress amends it, and Congress should require rulemaking procedures that are effective, but not overly burdensome.