Contesting the Reach of the Rights Revolution: The Reagan Administration and the Unitary Executive

Abstract Today, two touchstones of the conservative legal movement are support for the unitary executive theory and skepticism of affirmative action policies. This article reveals a connection between these two positions, demonstrating how policy disputes over civil rights contributed to conservative efforts to increase and legitimize presidential control over the bureaucracy through the controversial claim that the president possesses the whole executive power under Article II. Specifically, I examine two intertwined controversies from 1983, which pit the Reagan White House and Department of Justice (DOJ) against the Equal Employment Opportunity Commission (EEOC) and U.S. Commission on Civil Rights (USCCR), two agencies that Reagan officials viewed as obstacles to pursuing its preferred civil rights agenda. Conflicts between the DOJ and EEOC led the administration to deploy the unitary executive theory to help centralize control over its civil rights litigation strategy, while clashes with the USCCR spurred the administration to assert the theory's tenets amid battles over that agency's reauthorization. While these episodes yielded mixed political and legal outcomes, the early articulations of the unitary executive theory that emerged helped to elaborate and advance a controversial constitutional doctrine about presidential power that has become increasingly consequential over time.