The Unitary Executive and the Independent Legislature

There have been a lot of bizarre political theories advanced in the course of our national history, but two of the most bizarre and - in my opinion - dangerous have gained new currency in this era of conservative ascendence: the "Unitary Executive" and the "Independent Legislature."

The "Unitary Executive" theory maintains that all federal government power resides in the president, who has unrestricted authority to direct every aspect of the executive branch of the government independent of any oversight or challenge by the legislative or judicial branches. It has no basis in the Constitution as written*, but has been advocated by conservatives since at least the presidency of Richard Nixon and - especially - in the era of Der Furor.

The "Independent Legislature" theory, while legally dubious, at least has a tenuous connection to the Constitution, which delegates the power to administer federal elections to the states. The "Independent Legislature" theory grows out of an interpretation of how much power has been delegated to whom, and is based on interpretation of two relevant clauses in the Constitution. One is the Elections Clause (Article 1, Section 4, Clause 1), which reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” The other is the Presidential Electors Clause (Article 2, Section 1, Clause 2), which reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

The dispute hinges on the meaning of the word legislature.

Advocates of the Independent Legislature theory insist that legislature as written in the Constitution means exactly that - the elected legislature and only the elected legislature - and that laws enacted and decisions made by state legislatures are not subject to review, challenge, or oversight by any other state-level actors, such as governors or the courts.

Both of these theories are wonderful devices for ensuring full employment for lawyers and pundits, but are questionable ... if not idiotic ... on historic and philosophical grounds.

It strains credulity to believe that the framers of the Constitution, having just succeeded in gaining independence from a king with virtually unlimited powers, would even consider creating a president with unbounded royal authority - a "Unitary Executive." The entire concept of separation of powers among the legislative, executive, and judicial branches of government argues against it.

The separation of powers also argues against the concept of an "Independent Legislature." In the absence of executive and judicial oversight, an independent legislature is no less threatening to fundamental freedoms than a "Unitary Executive." Any organ of government that can operate without challenge or oversight threatens the very nature of the government structure created by the Constitution, especially in states in which all three branches of the government are controlled by a single party.  

If you're looking for a convenient way to undermine the legitimacy of government and the truncation of our freedom, these two bizarrely un-American political theories are for you. Think about this when you decide how to cast your votes in the upcoming elections.

Have a good day. More thoughts coming.

Bilbo

* This is conveniently ignored by those who insist on the doctrines of originalism and textualism when invoking the Constitution.