Earlier today we noted the upcoming symposium on the Unitary Executive at Fordham Law
Christine Kexel Chabot, Loyola University Chicago School of Law, has posted her contribution to it, The President's Approval Power, which is forthcoming in the Fordham Law Review:
This Article introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that her absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Article reconsiders approval’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Federal Congress shows that the Founding generation never understood Article II to grant the President general authority to approve subordinates’ decisions. Approval was instead a permissive power that the First Congress withheld in a vast majority of statutes and granted in only a handful of laws. Even when statutes granted the President or superior officers an approval power, moreover, they did not gain unitary control. Approval afforded only ex post review without power to force non-removable subordinates to initiate regulatory action implementing superiors’ preferred policies.--Dan Ernst
This Article also draws on historical practice to situate approval power within the broader unitary executive debate. At the Founding, approval offered a partial measure of accountability that Congress could incorporate when allocating decisionmaking power within the executive branch. Approval sometimes checked spending and contracting decisions that would be difficult to undo by removing an officer. In other instances approval governed executive adjudications conducted by officials who operated outside formal levers of control established by appointments and removal. The latter category of approval powers provides originalist evidence of an important alternative to formal requirements of plenary removal power. Unitary scholars following Justice Scalia’s Morrison dissent may likewise agree that it is proper for Congress to require approval as an alternative form of supervision for tenure-protected inferior officers and officials farther down the chain of command.
