Sunday, March 30, 2008
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.