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Document Type

Article

Abstract

The Supreme Court’s unfolding embrace of the unitary executive theory has now substantially restricted Congress’s ability to insulate administrative agencies from presidential control. In Trump v. Slaughter, the Court invalidated the Federal Trade Commission’s statutory removal protections and, in turn, shifted its substantial regulatory, adjudicative, and enforcement powers from independence to far more enhanced presidential supervision. The decision thus exposes a fundamental problem in the constitutional organization of, and legislative assumptions supporting, the administrative state, that have evolved over a substantial part of the nation’s history. Modern agencies are classified as “executive,” firmly placed within Article II under the president’s supervision, yet combine functions possessing legislative, judicial, and executive characteristics. Now, following Slaughter, those agencies with such combined functions are subject to stronger presidential control, even though the Constitution appears to contemplate distributing those powers among separate branches to enhance checks and balances, and independence, from the executive. As a result, Congress’s longstanding practice of relying on pre-existing constitutional understandings and intermixing powers within independent agencies is increasingly difficult to sustain under the Court’s new approach.

This Article argues that Congress can respond to Slaughter and the Court’s endorsement of a far more concentrated executive power by reconstructing the administrative state through the legislative reallocation of governmental functions, each more closely aligned with their constitutional nature. Under the Necessary and Proper Clause, Congress may establish or expand Article I institutions responsible for legislative research, policy analysis, and development regulations, while preserving the constitutional requirements governing the creation of binding law. Congress may also reassign adjudicative responsibilities from Article II to Article III courts. What could remain in the reduced administrative state under Article II would consist of a more limited range of purely executive functions (investigation, prosecution, enforcement, and execution). This approach would react to the embrace of the unitary executive theory and presidential concentration of power by reducing the scope of executive activities.

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