Trump's and Republicans' Plans to Complete their Vision of the Unitary Executive Government

I’ve previously advocated for a unitary executive theory, and I just want to distinguish what I’ve advocated for from Trump &co.'s plans, as described by the New York Times article. Same name, but totally different visions.

On the one hand, enforcing regulations (or any other law) is a clearly executive power, which is vested in the President, not Congress. It is the President’s job to make sure the law is faithfully executed. By all means, if the President thinks some company is violating antitrust laws, he should have the power to force the FTC to take action. Or if the President thinks the company is in compliance, he should be able to direct the FTC not to take action. If the law says, should the FTC find a violation it shall bring suit, the President could direct the FTC to find a violation and bring suit. He should be able to fire anybody who refuses to comply. I go even further, further than most, and say the President could personally write the complaint, file it in court, and argue before the judge in the capacity of the United States. Even if Congress explicitly gave the FTC or Attorney General the right to bring suit, even though the President might not meet bar qualifications. That’s my vision of strong unitary executive theory, taken to its logical extreme.

On the other hand, I don’t think making law is an executive function. There’s no indication that Trump &co. recognize the distinction. Regulations are, in some cases, positive law. Congress will often explicitly write, according to such and such regulations as the Secretary may make. I’m against the President dictating those regulations, or otherwise pressuring an official for or against making those kinds of regulations. Consider the Librarian of Congress, for a less politically charged example. Every three years the Librarian makes rules to establish categorical exceptions to the DMCA (Digital Millennium Copyright Act). For example one rule makes it legal to jailbreak or root your phone. The Act itself defers to the Librarian’s rules and give them force of law. I’m against the President directing the Librarian to make certain rules. It’s like that for most agencies, to some extent. I admit, we have so much federal regulation that if the President were to suddenly gain control of the regulatory process, he would practically become a dictator.

I don’t like the idea of independent executive agencies. I think it’s a mistake to roll up rulemaking and enforcement under the same department in the first place, be it the FCC or the FTC or whoever.

~Max