Minnesota Law Review
This Article was written for the 2008 Minnesota Law Review Symposium, Law & Politics in the 21st Century. The Article examines the core functionalist argument typically made to support unitary executive theory: that the theory advances the constitutional principle of accountability by demanding that all executive branch decisions be placed in the hands of a single, nationally elected official. This Article argues that a unitary executive undermines, rather than bolsters, government accountability. The Article also explains that one need not agree with that proposition to conclude that the accountability justification for unitary executive theory is flawed. Rather, one need only deem the point reasonably arguable - and hence within Congress' discretion to judge, subject to functional boundaries - to determine that accountability principles do not demand a unitary executive. The argument that unity reasonably can be deemed to undermine accountability rests on two prongs! First, it turns on the meaning of constitutional accountability. The Constitution reflects different forms of accountability that correspond to different constitutional actors who check and balance one another. Underlying all forms of accountability is the need for transparency and procedural regularity sufficient to enable public and inter-branch assessment of - and responses to - government actions. Second, unity helps the White House both to secretly intervene in administrative state decisions and to manipulate the very "facts" upon which such decisions purport to rest. The problem is compounded by the capacity of the White House politically to distance itself - and thus to create public confusion over who to blame - regarding decisions over which it legally has full authority (and in which conditions of unity thus exist). The Article is intended as a companion piece to another article to be published roughly contemporaneously with it in a symposium issue of the Willamette Law Review: Accountability and Administrative Structure.
Heidi Kitrosser, The Accountable Executive, 93 Minn. L. Rev. 1741 (2009), available at http://scholarship.law.umn.edu/faculty_articles/51.