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My question basically boils down to "does the Cabinet hold powers separate from the President?"

I'll give an example of what I mean.

The Secretary of Treasury is responsible for "formulating and recommending domestic and international financial, economic, and tax policy, participating in the formulation of broad fiscal policies that have general significance for the economy, and managing the public debt". Does the Sec. of Treasury have the powers described exclusively or can the President take on those responsibilities without a Secretary?

I know the President can remove a Cabinet member unilaterally and nominate a different Secretary if the former doesn't comply with their demands and a President won't likely nominate a Secretary that will disagree with them and refuse their demands. Still, if Congress writes and enacts a law that says "the Secretary of [Department] shall have the power to do such and such", is Congress giving that power directly to that Department/Secretary or is it granting that power to the President then allowing/directing him to delegate the powers to that Department?

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This is, at present, a theoretical issue (by which I mean SCOTUS has not consistently ruled in such a fashion as to make it unambiguous). One of the common political theories attached to this area is the Unitary Executive Theory. Many legal scholars seem to endorse a unitary executive of some sort, but there is little in the way of consensus on exactly how strong this theory's consequences are and how much power it truly grants the President. Those who tend to advocate for stronger interpretations, with a strictly hierarchical Executive branch with the President at the top, are the ones that normally operate under the label of "(the) Unitary Executive Theory".

The Unitary Executive Theory is a political theory which, in short, holds that since the Constitution expressly invests the executive power in the President (and no one else), then all powers of the executive branch, delegated or otherwise, are held by the President. Some more extreme versions propose that it completely prevents interference by Congress or the Judiciary in the actions of the President, especially on matters of national security. Less extreme beliefs on the consequences include that the Executive branch is immune to suits from itself (e.g. if two agencies have overlapping authority on something, and are in conflict, then they cannot legally resolve this in the courts, as the President, being the singular executive, cannot sue themselves). Somewhere between includes beliefs that independent agencies and counsels are all unconstitutional, as they effectively wield executive power that is severed from the President's exclusive ownership of all such power.

Proponents of a "unitary executive", but not necessarily "The Unitary Executive Theory", have some substantive differences with such imputations. There is reason to believe that the framers of the constitution did not intend a strictly hierarchical Executive. In particular, they envisioned Congress as having the greater powers of any of the branches and to have a certain amount of authority in structuring the executive branch. Congress can create and remove Executive Branch agencies and positions at will, determine the scope and limits of their powers, and even how much they are paid, for example. The "unitary executive" idea can be said to still hold in such frameworks in the sense that the President functions in a role of supervision and guidance over all members of the executive branch.

The distinction between such a "unitary executive" and that proposed by "(the) Unitary Executive Theory" is in how much specific power the president can exercise. It's the difference between "let's not prosecute crime X so much for now" and "drop these specific cases involving X, pursue these ones more vigorously, investigate A because I think he's guilty of Y, and add charges of Z to these other cases".

Myers v. United States (1926) held that the President can set policy decisions and remove any member of the Executive at will (ostensibly for failing to abide by or enact his policies to satisfaction), but subsequent SCOTUS decisions have variably expanded or constrained such power. He presently has the power to unilaterally remove certain members of the Executive branch, but not all. It's unresolved if the President can legally direct that very specific actions be taken by such members of the executive, or potentially anyone else held to be using "executive power". It remains something of a bone of contention of what, if any, authority the President has over independent counsels and agencies, but SCOTUS precedent to date supports their independence and constitutionality, and has largely restricted the President's control to "principle officers" (a somewhat imprecise term mostly designating positions in the Executive not subordinate to anyone except the President and appointed under Advice and Consent from the Senate; anyone supervised by such a person is an "inferior officer").

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  • "Most legal scholars seem to endorse a Unitary Executive theory of some sort," the theories given that name are an extreme and minority view in legal scholarship. Among other things it implies the extreme position that Congress cannot create independent agencies insulated from the President.
    – ohwilleke
    Jun 2 at 21:24
  • @ohwilleke That depends on if they're advancing a strong or weak version of the theory. The strong versions definitely say such things, but weaker versions need not. Weaker versions acknowledge that there's usually a little bit of overlap between powers exercised by branches, especially so with Congress, and that a Unitary Executive need not preclude exercise of "executive-like" powers by Congress (or, perhaps more accurately, through legislation). They tend to distinguish between the administrative functions of "supervision & guidance" and the actual execution of powers and actions, too. Jun 4 at 19:48
  • Though, yes, I suppose you're right and I'm overlabelling. Jun 4 at 19:56
  • As educational as this answer is, it doesn't explain how these ideas apply (or don't apply) to Cabinet members specifically.
    – MJ713
    Jun 4 at 21:49
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    @phoog I think that there is, at least in some circumstances, a difference, but the circumstances under which it is possible to litigate these differences (mostly under the Administrative Procedure Act) are few and far between. The difference is mostly material in the case of independent agencies or in bureaus within cabinet departments like the FBI that are somewhat insulated from the President with officers appointed for fixed terms. Other cabinet members cooperate anyway. I don't recall ever seeing reported cases on this point although I am sure that such cases are out there.
    – ohwilleke
    Jun 4 at 23:27
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To clarify, there is a distinction between power and authority in governance.

In the fields of sociology and political science, authority is the legitimate power that a person or a group of persons possess and practice over other people. In a civil state, authority is made formal by way of a judicial branch and an executive branch of government.

In the exercise of governance, the terms authority and power are inaccurate synonyms. The term authority identifies the political legitimacy, which grants and justifies the ruler’s right to exercise the power of government; and the term power identifies the ability to accomplish an authorized goal, either by compliance or by obedience; hence, authority is the power to make decisions and the legitimacy to make such legal decisions and order their execution.


Does Congress delegate their powers to the Cabinet directly or does it delegate it to the President who then gives it to the Cabinet member?

Congress delegates responsibility to offices and authority to the individuals holding those offices (only some of whom are members of the cabinet). Most of these individuals are in the executive branch. The president's responsibility is to "take Care that the Laws be faithfully executed".

The Constitution does not say that the President shall execute the laws, but that he shall take Care that the Laws be faithfully executed, i.e., by others.

There are, [the Court] pointed out, "certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. ... ."

This is an example of a specific delegation of responsibility and authority for the Comptroller of the Currency, who is not a member of the cabinet.

12 U.S. Code § 1 - Office of the Comptroller of the Currency

(a) Office of the Comptroller of the Currency established
There is established in the Department of the Treasury a bureau to be known as the “Office of the Comptroller of the Currency” which is charged with assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the institutions and other persons subject to its jurisdiction.

(b) Comptroller of the Currency

(1) In general
The chief officer of the Office of the Comptroller of the Currency shall be known as the Comptroller of the Currency. The Comptroller of the Currency shall perform the duties of the Comptroller of the Currency under the general direction of the Secretary of the Treasury. The Secretary of the Treasury may not delay or prevent the issuance of any rule or the promulgation of any regulation by the Comptroller of the Currency, and may not intervene in any matter or proceeding before the Comptroller of the Currency (including agency enforcement actions), unless otherwise specifically provided by law.

Part (a) delegates responsibility and part (b) delegates authority.

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Both.

Some tasks are delegated specifically to cabinet members by Congress. For example, the Secretary of the Treasury is in charge of issuing new government bonds in accordance with Congressional debt authorizations and can do so even if the President does not direct the Secretary of Treasury to do so expressly.

Other tasks are assigned to the President and may be delegated to a cabinet member by the President. The President is the Commander-in-Chief of the U.S. armed forces, but can delegate decision making and tasks connected with that duty to the Secretary of Defense and the Joint Chiefs of Staff (and generally does, on a day to day basis).

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