The Executive Power To Constrain: Presidential Consent And The Constitutional Legitimacy Of Independent Agencies

INTRODUCTION
The debate over the Unitary Executive Theory (UET) — the proposition that the Constitution vests all executive authority in the President — is frequently characterized as zero-sum: Either the President exercises complete control over the executive branch, or Congress has diminished that authority. Independent agencies, which are administrative bodies designed to be insulated from direct presidential oversight, are central to this debate. Their “for-cause” removal protections, which require that agency leaders may be dismissed only for specific, documented reasons, are viewed either as safeguards of democratic accountability or as unconstitutional infringements on the President’s Article II authority [1]. Scholars and jurists have advanced arguments on both sides for decades, but the Roberts Court has increasingly favored the former perspective.

However, this framing overlooks a critical aspect. It presumes that independent agencies such as the Federal Trade Commission (FTC), the Securities and Exchange Commission (SEC), and the Consumer Financial Protection Bureau (CFPB), all of which have leaders protected by for-cause removal provisions, were imposed on the executive branch against its will. In reality, many of these agencies were established through legislation signed by a sitting president, who possessed a constitutional veto power but chose not to exercise it. Under Article I, Section 7, a presidential signature constitutes an affirmative exercise of the Presentment Power, which enacts bills into law [2]. When the President signs legislation creating an agency with for-cause removal protections, this action reflects a joint decision by both elected branches, made in accordance with constitutionally mandated procedures, regarding the structure of governance.

This article contends that presidential consent is significant in the constitutional analysis of independent agencies. While a strong unitary executive is textually grounded, functionally necessary, and supported by case law from Myers v. United States (1926) to Seila Law LLC v. CFPB (2020), the concept of “strength” does not equate to unlimited authority. The constraints a president voluntarily accepts through the lawmaking process possess democratic legitimacy that the standard unitary executive account does not fully address. Both the removal power and the presentment power are constitutionally grounded. A comprehensive theory of executive authority must account for the interaction between these two clauses.

I. THE CASE FOR A STRONG UNITARY EXECUTIVE

Unitary executive theory is grounded in Article II, Section 1: “The executive Power shall be vested in a President” [3]. The Vesting Clause confers affirmative authority, and its scope is broad. If executive power is vested in the President, then institutions that exercise executive functions beyond presidential control raise constitutional concerns.

In Myers v. United States (1926), the Supreme Court established a significant precedent. Chief Justice Taft held that Congress could not require the President to obtain Senate approval before removing a postmaster [4]. His reasoning was expansive: Removal is an inherent component of the executive function, deriving from the Vesting Clause itself, and is not subject to congressional grant or withdrawal [5]. The principle applies beyond minor officials. If the President cannot remove executive officers at will, the unity of the executive branch is compromised, and the chain of accountability between the President and the bureaucracy is broken.

The Roberts Court has carried this logic forward. In Seila Law LLC v. CFPB (2020), the Court struck down the CFPB's for-cause removal protection for its single director, holding that such restrictions are presumptively unconstitutional [6]. Chief Justice Roberts' majority opinion treated the removal power not as one factor among others, but as a default constitutional entitlement [7]. Agencies structured to resist presidential control are, on this view, constitutionally suspect from the outset.

Academic scholarship has reinforced this position. Steven Calabresi and Kevin Rhodes, writing in the Harvard Law Review in 1992, argued that the Constitution’s structure mandates a unitary executive [8]. Their analysis of the Vesting Clause, the Take Care Clause, and the historical context of the founding supports the view that the framers intended executive power to be exercised by a single accountable officer, not dispersed among insulated administrators [9]. Together, Myers, Seila Law, and Calabresi and Rhodes construct the doctrinal and academic foundation of strong UET: executive power belongs to the President, removal authority is essential to exercising it, and democratic accountability depends on maintaining that structure intact.

II. THE LIMITS OF UNLIMITED CONTROL: COOPERATIVE LEGITIMACY

The conventional unitary executive account contains a structural deficiency that is seldom addressed. It characterizes the creation of independent agencies as acts of congressional encroachment: Congress appropriating executive power from the President. However, this perspective is both historically and constitutionally incomplete.

Consider the founding of some of the agencies at the center of the contemporary debate. The Securities Exchange Act of 1934, which created the SEC, was signed by Franklin D. Roosevelt, who actively supported the agency's independent structure [10]. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which created the CFPB, was signed by Barack Obama, who had championed a robust, independent consumer protection agency throughout the legislative process [11]. In neither case did Congress impose an independent agency on a resistant executive. In both cases, the president evaluated the legislation, had the veto, and chose not to use it. These were not hostile takeovers of executive power. They were joint acts.

This is the significance of the presentment power. Article I, Section 7 mandates that every bill passed by Congress be presented to the President, who may sign or veto it [12]. When a president declines to veto, that decision is itself an exercise of constitutional authority. The President has evaluated the legislation and determined that it establishes an acceptable governance structure. That judgment about how executive power should be organized is made by the very officer the Constitution designates as the repository of executive authority.

To be clear, this cooperative legitimacy argument is not that Congress may act without limitation, provided the President signs the bill. It is narrower. The claim is that when both elected branches, through the constitutionally prescribed lawmaking process, agree on how to structure an executive institution, the resulting arrangement carries democratic legitimacy that should factor into the constitutional analysis. It is not a unilateral congressional intrusion. It is a joint act with independent constitutional grounding.

Humphrey’s Executor v. United States (1935) supports this reading. The Court upheld for-cause removal protections for FTC commissioners, distinguishing them from the purely executive officer at issue in Myers [13]. The FTC, the Court reasoned, exercised quasi-legislative and quasi-judicial functions, not purely executive ones [14]. The decision acknowledged that not all agencies are constitutional equivalents and that both branches may legitimately design institutions at the intersection of governmental functions, a conclusion consistent with the cooperative legitimacy framework.

Lawrence Lessig and Cass R. Sunstein’s 1994 article “The President and the Administration” provides the broader theoretical grounding. They argue that the Constitution does not mandate a strongly unitary executive and that historical practice reflects diverse arrangements between Congress and the President over executive structure [15]. The founding generation, Lessig and Sunstein show, did not treat every congressional reshaping of executive institutions as an act of usurpation. The essential question was whether fundamental accountability remained intact, not whether the President retained unlimited removal authority in every context [16].

The cooperative legitimacy argument is, in this sense, a moderate pro-unitary executive theory position. It accepts that the President has broad executive power, including the power to remove. However, it argues that this power also includes the power to consent: to use the presentment authority to accept structural constraints as a matter of considered governance design. The power to sign legislation is itself an executive power. Using it to create an independent agency is not a surrender of Article II authority. It is an exercise of it.

III. THE BINDING PROBLEM

A principal objection to this cooperative legitimacy argument might question its implications for future administrations: Does the consent of one President bind subsequent Presidents? If President A signs a law establishing an independent agency, what compels President B to adhere to it? Federal branches are generally not authorized to relinquish constitutional powers, and if removal restrictions are unconstitutional in the abstract, the acquiescence of a prior president does not alter that fact. The objection is serious, but it proves too much. Statutes bind future presidents routinely. A president who disagrees with the Administrative Procedure Act does not simply ignore it because a prior administration enacted it. The question is not whether statutes can constrain presidential action (they can), but whether this particular category of statute is uniquely unconstitutional. The cooperative legitimacy argument provides reason to think it is not. The constraint emerged from the Constitution's own lawmaking process, not from congressional overreach. That origin matters.

The strongest counterargument comes from Justice Scalia's dissent in Morrison v. Olson (1988). Scalia argued that any removal restriction violates Article II, full stop. The Constitution does not ask whether Congress has impeded executive power by some tolerable degree. It vests executive authority in the President, and an officer not removable at will operates outside that structure [17]. In Scalia's view, no amount of presidential consent at the bill-signing stage resolves the constitutional defect, because the defect is categorical [18]. Scalia's position has force, but the Morrison majority resisted it for a reason. Chief Justice Rehnquist, writing for the Court, held that removal restrictions are permissible so long as they do not impede the President's ability to perform his constitutional duties [19]. This is a more functionalist standard than Scalia's categorical rule, and it leaves room for the cooperative legitimacy argument: When both branches have jointly structured an agency through the lawmaking process, the case that the arrangement "impedes" presidential authority is considerably weaker than when Congress acts unilaterally.

The cooperative legitimacy framework also has limits, and acknowledging them strengthens rather than undermines the argument. A statute purporting to strip the President of all removal power across the executive branch would present a different constitutional question, one where the magnitude of the constraint, rather than its procedural origin, becomes determinative. Cooperative legitimacy is a factor in the constitutional analysis, not a trump card.

CONCLUSION

The Unitary Executive Theory captures a real feature of constitutional structure. The President is the head of the executive branch, and democratic accountability depends on a functioning chain of command. A bureaucracy that can disregard presidential direction without consequence severs the link between voters and executive action.

Still, the theory overreaches when it treats every for-cause removal protection as a per se constitutional violation. The executive branch is not simply a presidential domain under constant congressional threat. It is an institution shaped collaboratively by both branches of government over two centuries of lawmaking. Many independent agencies central to the UET debate exist because a President signed them into law. That consent is constitutionally significant. Unfortunately, the Roberts Court’s doctrine is moving in the opposite direction. Seila Law's presumption against removal restrictions was extended in Collins v. Yellen (2021) to the Federal Housing Finance Agency, reinforcing the Court's inclination to treat agency independence as constitutionally suspect by default [20]. This trajectory makes the cooperative legitimacy argument more urgent, not less. The doctrine reads the Vesting Clause in isolation from the Presentment Clause. Both powers are in the Constitution. A comprehensive theory of executive authority must account for both. The executive power to accept structural limits through the lawmaking process is itself a form of executive authority. Recognizing so provides a fuller theoretical account of the unitary executive.

[1] See Seila Law LLC v. CFPB, 591 U.S. 197 (2020); Collins v. Yellen, 594 U.S. 220 (2021).
[2] U.S. Constitution, art. I, § 7, cl. 2.
[3] U.S. Constitution, art. II, § 1, cl. 1.
[4] Myers v. United States, 272 U.S. 52, 176 (1926).
[5] Myers v. United States, 272 U.S. 52, 163–64 (1926).
[6] Seila Law LLC v. CFPB, 591 U.S. 197, 213 (2020).
[7] Ibid, 215 (2020).
[8] Steven G. Calabresi and Kevin H. Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” Harvard Law Review 105, no. 4 (1992): 1165.
[9] Calabresi and Rhodes, “The Structural Constitution,” 1165–66.
[10] Securities Exchange Act of 1934, Pub. L. No. 73-291, 48 Stat. 881 (codified as amended at 15 U.S.C. §§ 78a–78pp).
[11] Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified in scattered sections of 12 U.S.C.).
[12] U.S. Constitution, art. I, § 7, cl. 2.
[13] Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935).
[14] Ibid, 602, 628 (1935).
[15] Lawrence Lessig and Cass R. Sunstein, “The President and the Administration,” Columbia Law Review 94, no. 1 (1994): 2–3.
[16] Lessig and Sunstein, “The President and the Administration,” 3.
[17] Morrison v. Olson, 487 U.S. 654, 709–10 (1988) (Scalia, J., dissenting).
[18] Ibid, 705–06 (1988) (Scalia, J., dissenting).
[19] Ibid, 654, 689–90 (1988).
[20] Collins v. Yellen, 594 U.S. 220, 251 (2021).