The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Sunday, March 30, 2008

The Unitary Executive and the Fed
Mike Rappaport

Over at Balkinization, Jack Balkin and Marty Lederman point out that the unitary executive theory is inconsistent with an independent Federal Reserve.  And Lederman takes unitary executive theorists to task for failing to trumpet this conclusion.  Lederman suggests that they do not discuss this aspect of the theory because it would be unpopular.

Well, let me discuss it.  I have struggled with this issue for years, since I first embraced the unitary executive theory during my years in the Justice Department (they didn't really teach this sort of thing at Yale, at least in my classes).   But I now feel pretty comfortable with my position.  The independent Federal Reserve is inconsistent with the original meaning of the Constitution.  But, unlike some other unitary executive theorists, I believe that the independent Federal Reserve may continue because it is entrenched into our system.  If the Supreme Court were to hold the Fed unconstitutional, we would soon see a constitutional amendment authorizing the independent Fed.      

In a paper that John McGinnis and I are now working on, we argue that when the overturning of a precedent (or practice) would lead to a constitutional amendment reestablishing that precedent, that precedent should be deemed entrenched and should be respected.  For a brief discussion in an earlier paper, see here.  So I can say that the independent Fed is unconstitutional, but its existence is authorized by a precedent that should be followed.

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Mike Rappaport
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Comments

Thanks, Mike!

One caveat, though: I don't actually "take unitary executive theorists to task for failing to trumpet this conclusion." I think the silence is completely understandable for those who, like yourself, actually believe the Fed is unconstitutional.

My principal goal instead was, uh, merely to trumpet it myself! (That is to say, it's those of us opposed to the UE theory who should be taken a bit to task for not having done enough to expose its radical implications.)

On the other hand, I do, of course, reserve some criticism for the Bush Administration, which talks a good game of unitary executive in countless signing statements, etc., only to then propose transferring a huge set of new and significant regulatory authorities to the Fed. They're not simply accepting the Fed reluctantly, on the sort of stare decisis grounds you invoke, but instead treating it as the be all and end all. Have you seen the "Blueprint"? http://www.treas.gov/press/releases/reports/Blueprint.pdf

If I have a question for the conservative community outside the Administration, I suppose, it's why there hasn't been the outcry here that there was w/r/t, say, the Miers nomination.

In any event, thanks for your candor.

Posted by: Marty Lederman | Apr 1, 2008 3:22:26 AM

P.S. As I note in my post, I *did* learn of this in my YLS classes while we were there -- in first year CONLAW course with Charles Black, in fact.

Posted by: Marty Lederman | Apr 1, 2008 3:24:23 AM

Amazing, how in Mr. Lederman's world it always turns out that law professors are highly intelligent professionals, but everyone in the Bush Administration is a criminal moron.

Posted by: y81 | Apr 1, 2008 2:15:14 PM

Ron Paul was right!

Posted by: TGGP | Apr 6, 2008 7:16:59 PM