Unitary executive theory

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The unitary executive theory is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.

Although that general principle is widely accepted, there is disagreement about the strength and scope of the doctrine.[1] It can be said that some favor a "strongly unitary" executive, while others favor a "weakly unitary" executive.[1] The former group argue, for example, that Congress's power to interfere with intra-executive decision-making (such as firing executive branch officials) is limited, and that the President can control policy-making by all executive agencies within the limits set for those agencies by Congress. Still others agree that the Constitution requires a unitary executive, but believe this is a bad thing, and propose its abolition by constitutional amendment.[2]

In several states, in contrast to the federal government, executive officers such as lieutenant governor, attorney general, comptroller, secretary of state and others are elected independently of the state's governor.


[edit] The theory

The Vesting Clause of Article II provides that "[t]he executive Power [of the United States] shall be vested in a President of the United States of America." Proponents of the unitary executive theory argue that this language, along with the Take Care Clause ("The President shall take care that the laws be faithfully executed..."), creates a "hierarchical, unified executive department under the direct control of the President."[3]

The general principle that the President controls the entire executive branch was originally rather innocuous, but extreme forms of the theory have developed.[4] John Dean explains: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters."[4]

According to law professors Lawrence Lessig and Cass Sunstein, "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version."[1] In either its strong or weak form, the theory would limit the power of Congress to divest the President of control of the executive branch. The "strongly unitary" theory posits stricter limits on Congress than the "weakly unitary" theory.[1]

Some scholars oppose even the "weakly unitary" theory, and favor creating a plural executive, as in the many state governments that separately elect an attorney general.[2] However, those scholars acknowledge that a constitutional amendment would be required to eliminate the federal unitary executive.

Proponents of a strongly unitary theory argue that the President possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the strongly unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the President.[3]

The judicial branch implications are that no part of the executive branch can sue another part because "the executive cannot sue himself." If the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.[5]

The theory, especially its strong form, has been associated with some elements of conservative legal thought. It gained greater prominence in the wake of the independent counsel statute, and the Supreme Court case Morrison v. Olson, which upheld that statute.

[edit] Adoption of constitutional provisions

The phrase "unitary executive" was discussed as early as the Philadelphia Convention in 1787, referring mainly to having a single individual fill the office of President, as proposed in the Virginia Plan. The alternative was to have several executives or an executive council, as proposed in the New Jersey Plan and as promoted by Elbridge Gerry, Edmund Randolph, and George Mason.[6][7]

At the Pennsylvania ratifying convention in 1787, James Wilson emphasized the advantages of a single chief executive, including greater accountability, vigor, decisiveness, and responsibility:

[T]he executive authority is one. By this means we obtain very important advantages. We may discover from history, from reason, and from experience, the security which this furnishes. The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. We secure vigor. We well know what numerous executives are. We know there is neither vigor, decision, nor responsibility, in them. Add to all this, that officer is placed high, and is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.[8]

In 1788, the letters of the Federal Farmer were published, generally considered among the most astute of Anti-Federalist writings. The pseudonymous Federal Farmer defended the proposed unitary executive, arguing that "a single man seems to be peculiarly well circumstanced to superintend the execution of laws with discernment and decision, with promptitude and uniformity."[9]

Meanwhile, Federalists such as James Madison were emphasizing an additional advantage of a unitary executive. In Federalist No. 51, he wrote that an undivided executive would strengthen the ability of the executive to resist encroachments by the legislature: “As the weight of the legislative authority requires that it should be thus divided [into branches], the weakness of the executive may require, on the other hand, that it should be fortified.”[10]

Alexander Hamilton later pointed out that the Constitution grants executive power and legislative power in different ways, with the legislative powers of Congress being expressly limited to what is "herein granted," unlike executive powers which are not expressly limited by an enumeration. Hamilton wrote:

In the article which gives the legislative powers of the government, the expressions are "All legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are "The executive power shall be vested in a President of the United States." The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power....[11]

In other words, the principle of expressio unius may be more applicable as a limitation upon congressional power than upon executive power. According to Hamilton, the unenumerated executive powers that are vested solely in the President "flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government."[11]

Those other parts of the Constitution include the extensive powers granted to Congress. Article I of the Constitution gives Congress the exclusive power to make laws, which the President then must execute, provided that those laws are constitutional. Article I, Section 8, clause 18 of the Constitution known as the Necessary and Proper Clause grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof". The Constitution also grants Congress power "To make Rules for the Government and Regulation of the land and naval Forces." The theory of the unitary executive can only be legitimate insofar as it allows Congress to wield its constitutional powers while ensuring that the President can do the same.

[edit] Judicial decisions

According to Dana Nelson, a professor of American studies at Vanderbilt University, "the theory of the unitary executive, first proposed under President Reagan, has been expanded since then by every president."[12] In fact, the unitary executive was a matter of controversy long before the Reagan administration. For example, in the 1926 case of Myers v. United States, the United States Supreme Court decided that the President has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body. The Court also wrote:

The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone.[13]

Subsequent cases such as Humphrey's Executor v. United States (Presidential removal of certain kinds of officers), United States v. Nixon (executive privilege), and Bowsher v. Synar (control of executive functions) have flexed the doctrine's reach back and forth. Justice Scalia in his solitary dissent in Morrison v. Olson argued for an unlimited presidential removal power of all persons exercising executive branch powers, which he argued included the independent counsel; the court disagreed, but later moved closer to Scalia's position in Edmond v. United States.[14]

[edit] Criticism of the strong version of the theory

Loyola Law School Professors Karl Manheim and Allan Ides write that “the separation among the branches is not and never was intended to be airtight,” and they point to the President’s veto power as an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power being exercised by the executive branch, as necessary elements of the administrative state, but they contend that ultimately all administrative power belongs to Congress rather than the President, and the only true "executive" powers are those explicitly described in the Constitution.[15] In this understanding, Manheim and Ides follow in the footsteps of Lessig and Sunstein.[1]

Professors David Barron and Martin Lederman have also criticized the strong version of the Unitary Executive Theory. They acknowledge that there is a compelling case for a unitary executive within the armed forces.[16] However, they argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and they argue that the Commander in Chief Clause would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the President.[17]

Contrary to claims of some authors,[18] the first administration to make explicit reference to the "Unitary Executive" was not that of President George W. Bush. For example, in 1987, Ronald Reagan issued a signing statement that declared: "If this provision were interpreted otherwise, so as to require the President to follow the orders of a subordinate, it would plainly constitute an unconstitutional infringement of the President's authority as head of a unitary executive branch."[19]

The George W. Bush administration did make the Unitary Executive Theory a relatively common feature of signing statements.[20] For example, Bush was criticized for saying in a signing statement that he would, "construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."[21] Critics acknowledge that part of the President's duty is to "interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies," but critics accused Bush of overstepping that duty by his perceived willingness to overrule U.S. courts.[22]

The UET came in for some stinging criticism in newspaper opinion pieces and news reports during the administration of George W. Bush. For instance, Dana Milbank reported for the Washington Post in 2004 about "an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president."[23] Former Bill Clinton aide Sidney Blumenthal opined in a British newspaper that the UET would make President George W. Bush into "sole judge of the law."[24]

[edit] Footnotes

  1. ^ a b c d e Lessig, Lawrence and Sunstein, Cass. "The President and the Administration," Columbia Law Review, Volume 94 (1994).
  2. ^ a b Berry, Christopher and Gersen, Jacob. “The Unbundled Executive”, University of Chicago Law Review (2008): "We certainly do not claim that the most sensible or even any plausible interpretation of the U.S. Constitution establishes a plural unbundled executive; but perhaps it should."
  3. ^ a b Calabresi, Steven and Rhodes, Kevin (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review 105: 1165. doi:10.2307/1341727. 
  4. ^ a b Dean, John. Broken Government, page 102 (Viking 2007).
  5. ^ Latham, Joshua. “The Military Munitions Rule and Environmental Regulation of Munitions,” Boston College Environmental Affairs Law Review, Volume 27, page 467 (2000).
  6. ^ Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates (Signet Classic, 1986), p. 67 (“MR. [James] WILSON entered into a contrast of the principal points of the two plans [i.e. the Virginia Plan and the New Jersey Plan]… These were… A single Executive Magistrate is at the head of the one – a plurality is held out in the other.”)
  7. ^ Records of the Federal Convention, Article 2, Section 1, Clause 1, (1787), The Founder’s Constitution.
  8. ^ Wilson, James. Pennsylvania Ratifying Convention, 4 Dec. 1787.
  9. ^ Ellis, Richard. Founding the American Presidency, page 39 (Rowman & Littlefield 1999).
  10. ^ Madison, James. Federalist no. 51 (1788-02-06).
  11. ^ a b Hamilton, Alexander. "Pacificus Letters, No. 1" (1793-06-29).
  12. ^ Nelson, Dana. "The 'unitary executive' question: What do McCain and Obama think of the concept?" Los Angeles Times" (2008-10-11).
  13. ^ Myers v. United States, 272 U.S. 52 (1926).
  14. ^ Calabresi, Steven and Lawson, Gary. “The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia,” Columbia Law Review (2007).
  15. ^ Manheim, Karl and Ides, Allan. "The Unitary Executive," via SSRN (September 2006).
  16. ^ Barron, David and Lederman, Martin. “The Commander In Chief At The Lowest Ebb — Framing The Problem, Doctrine, And Original Understanding,” Harvard Law Review, Volume 121, page 689 (2008): “we think the text, as reinforced by historical practice, makes a strong case for at least some form of a ‘unitary executive’ within the armed forces, particularly as to traditional functions during armed conflicts.”
  17. ^ Barron, David and Lederman, Martin. “The Commander in Chief at the Lowest Ebb -- A Constitutional History,” Harvard Law Review, Volume 121, page 941 (2008): “there are those who would argue that the ‘unitary executive’ must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence.”
  18. ^ Kelley, Christopher. "Rethinking Presidential Power — The Unitary Executive and the George W. Bush Presidency," Paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association, April 7-10, 2005, Chicago, IL.
  19. ^ Reagan, Ronald. “Statement on Signing the Federal Debt Limit and Deficit Reduction Bill” (1987-09-29).
  20. ^ Johnsen, Dawn. "What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses", Boston University Law Review, Volume 88, page 395 (April 2008): "On 363 occasions, President Bush objected to provisions that he found might conflict with the president’s constitutional authority 'to supervise the unitary executive branch.'"
  21. ^ Lazarus, Edward. "How Much Authority Does the President Possess When He Is Acting as 'Commander In Chief'? Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent," FindLaw (2006-01-05): "That signed statement shows, in microcosm, how the President sees the separation of powers: The President, in his view of the world, can interpret away constraints on his power, such as those in the McCain Amendment, or FISA before it. And the courts can hardly question his dubious 'interpretations' even if they gut the very statutes they construe: After all, there are 'constitutional limitations on the judicial power' - though not, apparently, on the power of the executive."
  22. ^ Van Bergen, Jennifer. "The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?", Findlaw (2006-01-09): "In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution...."
  23. ^ Milbank, Dana. “In Cheney's Shadow, Counsel Pushes the Conservative Cause,” Washington Post (2004-10-11).
  24. ^ Blumenthal, Sidney. "George Bush's rough justice - The career of the latest supreme court nominee has been marked by his hatred of liberalism", The Guardian (2006-01-12): "Yoo publicly debated last month the radical notion of the 'unitary executive' - that the president, as commander-in-chief, is sole judge of the law, unbound by hindrances such as the Geneva conventions, and has inherent authority to subordinate independent government agencies to his fiat."

[edit] See also

[edit] Bibliography

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