A rhetorical question

[Marty Lederman]

Fair enough.  But the question is why there isn't much more serious controversy in legal academic circles about the Fed than about the occasional (now defunct) independent prosecutor.  After all, the power wielded by the former is much vaster, more pervasive, and more permanent -- and unlike the prosecution power, which was not the exclusive preserve of the Executive at the Founding, there is no "originalist" theory (I assume -- I haven't looked into it) for delegating the nation's monetary policies to independent, "unaccountable" officials.  So why doesn't the unitary executive theory have much more traction in this context than in that of the independent prosecutor?

The answer, I think, is that the Nation has fully come to terms with, and accepted the value of, an independent Fed; and therefore if the unitary-executive proponents were to acknowledge that their theory leads to the invalidation of the independent Fed (and many other agencies whose independence is now taken for granted), the "traction" of the theory as a whole would suffer (as, IMHO, it should).


----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Friday, August 17, 2007 11:28 AM
Subject: RE: A rhetorical question


>    Well, the unitary executive "types" I know are quiet people, not
> generally given to screaming.  But Steve Calabresi, one of the leading
> supporters of the unitary executive, has expressly argued that the
> independent Fed is indeed unconstitutional (see, e.g., 48 Ark. L. Rev.
> 23).
> 
>    Indeed, Calabresi and others don't seem to be spending much of their
> time criticizing the Fed rather than, say, independent counsels.  But
> this makes perfect sense:  All of us rightly focus our arguments on
> those examples that we think will most appeal to our listeners -- this
> means we choose those examples as to which there is a serious
> controversy (so that our arguments are likely to have traction) rather
> than those as to which there isn't.
> 
>    Eugene
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
> Sent: Friday, August 17, 2007 8:00 AM
> To: Sanford Levinson; Earl Maltz; Jonathan H. Adler; James G. Wilson;
> CONLAWPROF at lists.ucla.edu
> Subject: Re: A rhetorical question
> 
> 
> 
> I had the same reaction as Sandy.  Where are the screams from
> the unitary-executive types when the nation's entire monetary policy is
> being determined by someone who is not subject to the President's (or
> anyone else's) control?
> 
> I recall that, in my first-year ConLaw course, Charles Black --
> obviously not a skeptic of the New Deal -- recounted having espied
> Arthur Burns in an airport one day in the early 1970's and thinking to
> himself, "Now, where in the Constitution is it, exactly, that authorizes
> this man, never elected to any public office, to unilaterally control
> the entire economy of the United States?" 
> 
> ----- Original Message ----- 
> From: Sanford Levinson <mailto:SLevinson at law.utexas.edu>
> 
> To: Earl Maltz <mailto:emaltz at camden.rutgers.edu>  ;
> Jonathan H. Adler <mailto:jha5 at case.edu>  ; James G. Wilson
> <mailto:james.wilson at law.csuohio.edu>  ; CONLAWPROF at lists.ucla.edu 
> Sent: Friday, August 17, 2007 9:45 AM
> Subject: RE: A rhetorical question
> 
> Earl writes, "I know, this has nothing to do with
> constitutional law, but its kind
> of interesting anyway."
> 
> Isn't it bizarre to say that the central mechanisms of
> economic control, including the strange status of the Fed in an
> ostensibly "three-branch" system, have "nothing to do with
> constitutional law."  
> 
> sandy
> 
> ________________________________
> 
> 
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