The Collateral Fallout from The Quest for a Unitary Executive

By Harold J. Krent
November 1, 2023

To bolster a strong “Unitary Executive,” the Roberts Court has held that Congress can neither shield a single head of an administrative agency nor an inferior officer in an independent agency from removal at will.  With respect to appointments, the Roberts Court has held that adjudicative officers in many executive agencies must now be appointed either by the President or a superior officer under the President’s supervision.  As a result, dissenting Justices and academics have accused the Roberts Court of expanding Article II beyond both the constitutional text—which seemingly grants Congress the discretion to structure administrative agencies as it deems fit—and historical precedents.

Less well noted, these rulings have in addition destabilized other legal doctrines.  This Essay focuses on one of several doctrinal reverberations.  In deciding how to remedy the appointments and removal violations, the Court has adopted cures for the perceived defects by rewriting statutes in increasingly freewheeling ways.  As a consequence, the Court’s adventurism in selecting remedies for perceived separation of powers flaws has itself arguably resulted in separation of powers violations.