Somewhat related in rulings about the President's control of various agencies is the unitary executive, which has gained popularity (like originalism) in right-leaning circles in recent years (thanks Scalia):
* https://archive.is/https://www.vox.com/scotus/397729/supreme...
* https://en.wikipedia.org/wiki/Unitary_executive_theory
Right-leaning folks are all for it:
* https://www.journals.uchicago.edu/doi/full/10.1086/714860
Others less so:
* https://scholarship.law.nd.edu/ndlr/vol98/iss1/3/
Pre-Trump, one famous SCOTUS ruling determined that some agencies were / acted 'in between' branches:
> What the Court held in Humphrey’s Executor is that if an agency is of the latter kind—that is, the agency’s job description involves a mixture of quasi-legislative and quasi-judicial functions that are not within the President’s explicit Article II powers—then it is up to Congress to determine whether this kind of agency’s heads serve at the President’s pleasure. If such an agency’s role is essentially “to carry into effect legislative policies embodied in statute,” then Congress may protect its members against discharge except for good cause.
* https://verfassungsblog.de/the-unbearable-lightness-of-the-u...
* https://en.wikipedia.org/wiki/Humphrey%27s_Executor_v._Unite...
What do you call the theory that the legislative power is vested in Congress—i.e. that Congress can’t create bodies that exercise legislative powers independently of Congress? You don’t have a label for that—it’s just what the first sentence of Article I obviously means.
The term “unitary executive theory” is wordplay, meant to make the ordinary seem unusual. It’s not a “theory” it’s just the meaning of the first sentence of Article II: “The executive Power shall be vested in a President of the United States of America.”
The Constitution creates three organs of government: Congress, the President—not the “executive branch,” but a single officer—and the Supreme Court Court. It’s obvious that Congressional or judiciary staff can’t exercise the legislative or judicial power, respectively, independent of the constitutional actors. The same is true for the President. There is nothing in the Constitution to suggest otherwise.
Sigh. "Executive power" implies the question, execute what, exactly? Whether you take a textualist or originalist view, obviously the answer is, execute the enumerated duties, including "take Care that the Laws be faithfully executed[.]" Equally obviously, "the Laws" are whatever TF Congress says they are, as long as they're within the grant of Article I — especially the Necessary and Proper Clause — and the other explicit grants to Congress in the various amendments.
Oh, and: There's no Necessary and Proper Clause in Article II for the president.
It doesn’t raise any such question because “the executive power” refers to a pre-existing concept. Article II starts: “The executive Power shall be vested in a President of the United States of America.” The use of the definite article “the” without any textual antecedent basis indicates the term refers to a pre-existing concept. In contrast, the use of “a” to refer to the “President” indicates that concept is further defined in the document.
In 1787, “the executive power” was a well understood concept in political theory. The 1653 constitution of the Commonwealth of England had a concept of separation of powers between the legislative and executive. Locke's Second Treatise of Government (1690), and the 1777 English translation of Montesquieu's Spirit of the Laws use the actual term "executive power" dozens of times each.
This is consistent with Article III, which mentions the “judicial power,” but doesn’t mention most of the functions of a court. It doesn’t need to—“the judicial Power” is a reference to a preexisting concept.
The Constitution’s vesting clauses are like the sentence “this operating system runs the virtual memory pager and file system in separate processes.” You know I’m talking about a microkernel without my specifying any further details because the sentence uses well known computer science concepts.
Moreover, whatever “the executive Power” entails, it must always be “vested in a President of the United States.” Congress can alter the extent of “the executive Power” by law, but it can’t take that executive Power—including the power to faithfully execute the law—and give it to someone else.
Then why didn’t the drafters just stop with the first sentence of Article II?