Unitary Executive Theory in action

By Charlie Savage

The Washington Post reports this morning that the White House overruled the EPA in a dispute over air pollution rules, forcing the agency to adopt a regulation allowing higher smog levels than agency scientists thought was appropriate:

The Environmental Protection Agency weakened one part of its new limits on smog-forming ozone after an unusual last-minute intervention by President Bush, according to documents released by the EPA.

EPA officials initially tried to set a lower seasonal limit on ozone to protect wildlife, parks and farmland, as required under the law. While their proposal was less restrictive than what the EPA's scientific advisers had proposed, Bush overruled EPA officials and on Tuesday ordered the agency to increase the limit, according to the documents.

"It is unprecedented and an unlawful act of political interference for the president personally to override a decision that the Clean Air Act leaves exclusively to EPA's expert scientific judgment," said John Walke, clean-air director for the Natural Resources Defense Council.

This event provides a case study of the effort by the Bush administration to expand presidential power. While most of the attention to this push has focused on national-security issues, it covers the gamut of domestic issues as well. A central pillar has been the so-called Unitary Executive Theory, which undercuts the ability of Congress to regulate the executive branch.

The theory holds that because the Constitution vests the executive (law-executing) power in the president, he gets to delegate it to other executive branch officials as he sees fit. Thus, Congress cannot vest independent decision-making authority about how to execute anti-pollution laws in a subordinate official like the head of the EPA; such a law is unconstitutional and the president is free to ignore it and override the official's decision.

The Unitary Executive Theory, which was an invention of the Meese Justice Department during the Reagan administration, is controversial because the Constitution also explicitly empowers Congress to make rules and regulations for how the executive branch carries out its work. There are also several Supreme Court precedents that are incompatible with the theory. Nevertheless, the Bush administration has embraced the theory, especially in forums where it is very difficult to challenge what the executive branch has done in court.

As the ozone dispute illustrates, the mounting question of whether Congress can regulate the government in a way that limits presidential control can make the difference in the outcome of a huge range of policy disputes. Unfortunately, however, no debate moderator has asked the 2008 presidential candidates about his or her views on the Unitary Executive Theory. A Boston Globe survey of the candidates' views last December captured the views of McCain, Obama, and Clinton on the extent to which they each believed the president is bound to obey laws regulating his or her conduct in national-security matters, but it neglected to ask them directly about the Unitary Executive Theory and domestic issues such as the control of environmental rules.