Cornell Law Review Volume 99 Issue 5

Unitary Innovations and Political Accountability

An important trend in administrative and constitutional law is to attempt to concentrate ever-greater control over the administrative state in the hands of the President. As the Supreme Court recently reminded us in Free Enterprise Fund v. Public Company Accounting Oversight Board, one foundation for this doctrinal trend is a fear that diffusing power diffuses accountability. Here, I study whether institutional innovations resulting from such judicial decisions support this functionalist constitutional value of political accountability, emphasizing under-appreciated complications arising out of interbranch relations. For most of the Article, I conduct an indepth empirical case study of the legislative veto, one of the legislature’s more potent tools to control the administrative state. I focus in particular on lessons we can draw from the “laboratories” of the states. Using a novel dataset of state session laws, I demonstrate that legislatures respond to a judicial invalidation of the legislative veto by augmenting alternative tools of administrative control. I further show that after the loss of the legislative veto, control over administrative agencies seemingly shifted in favor of the legislature, not the executive—an outcome contrary to the expectations of a unitary executive theorist but consistent with a legislative “backlash” to the judicial decision. These findings question a foundation of the unitary impulse present in much recent judicial doctrine and advocate a dynamic perspective in separation of powers doctrine.

 

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