Document Type

Article

Publication Date

2023

Abstract

This essay, which was prepared for the Fordham Law Review's February 2023 symposium on the Unitary Executive, addresses the question whether the Constitution requires that the President have absolute control over the information that those charged with executive authority may provide to Congress and the public, regardless of how technical or essential to democratic governance that information may be, and notwithstanding the existence of legislation to the contrary. For example, does the Constitution require that the President must be free to substitute their judgment for that of an expert official charged by Congress with making determinations about the likely path of a hurricane or the course of a deadly pandemic? Does the Constitution further require that the President must have the authority, notwithstanding contrary provisions of law, to suppress such expert information, for whatever personal or political reason? On the one hand, the Constitution vests the executive power in the President and charges the President to take care that the laws be faithfully executed. On the other hand, the Constitution does not itself dictate the design of the executive branch, but leaves to Congress the responsibility for creating the architecture of the executive branch, including the creation of offices, the setting of qualifications for those who hold those offices, and the apportionment of powers and responsibility among those offices and the officials who hold them. This essay considers various permutations of the unitary executive theory, several relevant Supreme Court and OLC opinions, and some aspects of executive practice during the Trump administration. The essay argues that the relevant Supreme Court jurisprudence recognizes the power of Congress to design certain executive offices that would have the responsibility for compiling and communicating to Congress and the public the information that they need to discharge their respective constitutional obligations of lawmaking and oversight, without presidential interference.

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