Steven Douglas Maloney

Do believers in the unitary executive believe that the Constitution somehow supercedes the Congressional power to designate particular bureacracies and their activities?  Here’s what I don’t get: I do not see how the Unitary Theory of the Executive makes the President the unrestricted “boss” of the whole executive branch without invalidating the bureacracies themselves.  If people have to do whatever the President orders regardless of what Congress thinks of such behavior, then the particular bureacratic designations of different bureacracies by Congressional Act is just some non-binding nicety that the President does not really have to follow.  If everyone simply does what the President tells them to do, it is simply a matter of personal choice for the President that the FBI looks like a recognizable version of the FBI, or Treasury, or OLC, or NSA.  If this is the case, what is the point of the Congressional acts creating bueacracies?  What would it mean, if anything, for Congress to withold passage of legislation for the creation of a bureacracy if the President can simply command existing bureacrats to do whatever the President orders, so long as no laws are violated, anyway?  What I mean is that if Congress creates an executive agency, it seems like they are creating a particular agency with particular functions rather than creating some alternative type of agency which their legislation does not create. In doing so, they seem to in effect be setting the rules of behavior for what the agency can do, and by implication cannot do.  If the Unitary Executive Theory believes that all executive activities are truly “fully vested” in the President alone, then it seems to me that the Cognressional acts that create “Agency X (and “Not Agency Y”) cannot be meaningful because if creating “Agency X” comes with no guarantee that you have also created “Not Agency Y,” then the entire reating of bureacratic agencies seems to be nonsensical.

Let me put it in an absurd example to help clarify what I am asking. If Congress creates a Federal Bureau of Investigations and specificies generally what the stated hopes and positive benefits are for creating the agency, and that the do so knowing that they are authorizing payment forthe FBI and that if it is not a “plus value” use of tax money on the whole, voters will get upst with them.  According to the Unitary Theory of the Executive, if the President deemed it acceptable for all FBI employees to play basketball games all day, every day, Congress has no authority to intervene. It is on the President’s shoulders to decide what count as prudent and imprudent use of his employees time in executivng the laws.  So, If any federal bureacratic agecy can be turned into a pick-up basketball league wihtout Congressional intervention, what’s the point of creating the agency in the first place?  I fear the answer is that the legislature has to trust the executive, but I am suspicious that there is some stronger argument that I am missing. I also suspect that the trick in selling this legal theory in argument rests largely in hoping that no one notices the massive amount of esirable political relationships that are desirable.  I wish I could pose the question more clearly, but maye that’s part of the reason I am puzzled. Any help out there?