[The second of four blog posts drawing on yesterday's Hallows Lecture at Marquette Law School.]
My first blog post set forth the implicit but widely accepted "three buckets" picture of the government's structure underlying the Supreme Court's separation of power cases, under which if a federal entity is not part of Congress or part of the judiciary, it inevitably follows that it must be in the Executive Branch. The three buckets conception becomes deformative of the Constitution's design when it is combined with another idea that is explicitly and repeatedly asserted by the President's lawyers—the idea of the "unitary executive."
Ever since the Reagan Administration, lawyers working in the Executive Branch have asserted that the President must have the authority to control everything that happens in the Executive Branch. This advocacy has paid off: The Supreme Court has embraced the idea nearly in full—from the Trump immunity decision to a series of decisions giving the President the authority to remove the head of administrative entities.
