Beware the unitary executive doctrine

We wish to call to your attention a collateral consequence of a recent development in constitutional law: President Donald Trump‘s success before the United States Supreme Court in establishing the unitary executive. This constitutional doctrine eliminates as a separate branch of government “independent agencies,” such as, for example, the Federal Communications Commission. The argument for this doctrine is that there are only three branches of government and not four: No Article IV, just I, II and III. All of the executive authority rests in the president — goes the argument and now the law.

The members of this board have different views about whether the unitary executive is supported by a proper constitutional interpretation. But we now have it. And so does President Trump. His statements about agency actions, including enforcement of laws and regulations, are, by virtue of his being the executive of the entirety of the federal government apart from Congress (and possibly its Article I courts) and the judiciary, are party admissions binding on the relevant agencies for whom he is now speaking, speaking for as a matter of constitutional law.

Litigators love party admissions because they are the easiest way to prove a point. If the president now makes a statement about, say, what and why the FCC should do something, that statement, in its entirety, will be and should be the statement of the FCC itself. Trump and the FCC are one and the same, and Trump and the FTC, and on and on through the agency alphabet soup. That is what he wanted. That is what he has. And any competent counsel would have informed him of this.

Although this consequence of the unitary executive has not been commented upon to our collective knowledge, it has and will have a continuing important impact on what Trump, and all presidents hereafter, say and do. It “has” because it dooms any effort by the FCC to revoke the broadcast licenses of ABC and NBC because Trump demanded it in response to their refusal, as was their constitutional right, to air his July 16 speech to the nation live. If the FCC even tries to revoke their licenses, it will be because they refused to surrender the use of the airways to the federal government. It will be because the FCC, by virtue of Trump’s binding party admission, found that the networks committed fraud by refusing to air his speech. Trump’s claim is absurd, and it is now the FCC’s claim. Now and forever.

Even without the party admission issue, any attempt to punish the networks for not carrying the speech live is without merit. Even in Red Lion v. FCC, the case that upheld the personal attack aspect of the (now abandoned) fairness doctrine stated: “There is no question here … of the official government view dominating public broadcasting.”

ABC and NBC should ignore Trump’s threats and announce that they will ignore them. (Doing so with undisguised glee would be entirely appropriate.) Defying Trump in that way would bait him into talking more and more and thereby further poisoning anything the FCC might do against the two networks. Speak on Macduff!

Trump should be very careful about what he says about anything concerning any agency of the federal government. Restraining himself is not this president’s strong suit, weak suit or any suit. Courts should take notice.

Editorial Advisory Board Members Jill P. Carter and Jeff Sovern did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Gary E. Bair

Jill P. Carter

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Steven I. Platt

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.