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

• In Event: Executive Power and Bureaucratic Politics

Abstract

This paper reconsiders how the Rights Revolution and its aftermath affected presidential power and how, in turn, subsequent uses of presidential power affected the rights of marginalized groups protected by key civil rights statutes and court cases. My argument is that the development of civil rights institutions in the executive branch – as part of the broader civil rights laws passed by Congress in the 1950s, 60s, and 70s – incentivized presidents to try to exercise more direct control over the executive branch. The battle over determining the scope of rights moved from just trying to enact new statutes to instead trying to control the interpretation and implementation of existing statutes, resulting in presidents seeking to determine the reach of the Rights Revolution through exercising control over these rights-related agencies.

Specifically, this paper examines two critical, intertwined civil rights controversies from the Reagan Administration. In 1983, the administration sought to impose more direct presidential control over two rights-related institutions – the Equal Employment Opportunity Commission [EEOC] and the U.S. Commission on Civil Rights [CRC]. In both cases, a key part of the White House’s motivation was disagreements with these agencies over the scope of affirmative action. Top Reagan officials argued these agencies supported quotas, while the White House preferred “colorblind” policies. In each case, the Reagan administration ultimately articulated what became known as the unitary executive theory as part of its stated rationale for trying to exercise more direct control over these agencies’ personnel and policies.

The political and legal outcomes in these two cases were mixed, but as I will show, these cases helped advance a controversial constitutional doctrine that has been increasingly consequential in recent years. Indeed, my initial evidence from these cases suggests that the unitary executive theory developed, in part, as a way to undermine the independence of rights-focused agencies in the executive branch.

The paper draws heavily on original archival evidence gathered from the papers of administration officials, allies, and critics from the Reagan Library, Hoover Institution, and Library of Congress.

Author

• John A. Dearborn, Vanderbilt University