Legislative Delegation, the Unitary Presidency, and the Legitimacy of the Administrative State

Abstract

This essay focuses on the relationship between non-delegation doctrine and so-called unitary executive theory. It argues that, if the Supreme Court were to embrace unitary executive theory without, as is highly unlikely, tightening up on the non-delegation doctrine, the result would be a constitutional disaster in terms of reduced executive branch legal and political accountability. Increasing the legitimacy of the administrative state ought to involve more, not fewer mechanisms that subject the exercise of presidential power to effective checks and balances.