Must Administrative Officers Serve at the President’s Pleasure? - By Caleb Nelson

The United States Supreme Court is moving toward the theory of unrestrained Preisdential power known as the "unitary executive". Its origin is plain enough: Article II of the Constitution says that “[t]he executive Power shall be vested in a President of the United States of America.” . In a literal reading every federal agen becomes a finger on the presidential hand. The proposition is widely embraced by conservative lawyers and scholars.

It is of course true that the development of the administrative state - particularly in the terms of the four term President Franklin Delanco Rosevelt. In that time - 1932- 1944 the modern administrative state tooks its full form. This has been embraced by liberals and conservatives - see, e.g. Adrian Vermeule and Cass Sunstein's Law and Leviathan.

But since Ronald Reagan took the helm in 1980 the political right's hostility tot the so-called "administrative state" has grown deeper. The theory of the unitary state has grown markedly, along with a jurisprudence that laments the modern regulatory state.

The Article II quote above is now taken almost literally by conservative legal writers and judges. but the unitary executive theory has had almost free run in the past decade.

The root of it can be found in C.J. John Roberts whose writing not only protects but pomotes the unitary eccutive.  Roberts would gut the power of th  lower house.  The argument embraces the declaratory statement in Article II that "

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”"

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

But Vermeule differs from most fellow conservatives because he embraces the modrn adnministratie state.

 Must administrative officers serve at the President's pleasure? - by Caleb Nelson*

* University of Virginia, School of Law