Unitary executive theory
The unitary executive theory is a legal theory in United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch. The doctrine is rooted in 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 among legal scholars (but not political scientists or public administrators), there is disagreement about the strength and scope of the doctrine.[1] In 2008, Steven Calabresi and Christopher Yoo described the unitary executive theory as ensuring "the federal government will execute the law in a consistent manner and in accordance with the president’s wishes." This stands in contrast to other scholarly literature, such as MacKenzie in 2008 and Crouch, Rozell, and Sollenberger in 2020, that stresses the fact that federal employees have to faithfully execute the laws enacted according to the process prescribed in the U.S. Constitution.
Theory[edit]
The Vesting Clause of Article II provides, "The 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."[2]
The general principle that the President controls the entire executive branch was originally rather innocuous because it was understood that the President would execute the law. However, extreme forms of the theory have developed in which the President’s wishes exceed the law. Former White House Counsel 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."[3]
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] During his confirmation hearing to become an Associate Justice on the United States Supreme Court, Samuel Alito seemed to endorse a weaker version of the unitary executive theory.[4]
Some scholars oppose even the "weakly unitary" theory for one of two reasons. Some favor a plural executive, and others favor a view in which Congress and the President share control over the bureaucracy (see references below). Those that favor creating a plural executive, as in the many state governments that separately elect an attorney general.[5] However, those scholars acknowledge that a constitutional amendment would be required to eliminate the federal unitary executive. However, when discussing amending the constitution the phrase unitary executive is being used differently than it is when discussing the unitary executive theory. When discussing unitary executive vs plural executive, the phrase simply defined how many members of the executive branch are elected to office.
The unitary executive theory is conceptually a different concept in two ways. First, it applies to the US President, not US governors (state level executives). Second, unitary executive theory is about the President having control (not influence) over the federal bureaucracy. Other scholars such as David Rosenblom (2001) and Francis Rourke (1993) in their John Gaus lectures argued that Congress and the President share influence over the bureaucracy.
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.[2] However, such agencies do exist and have for at least a century. The existence of such agencies has been upheld by the courts (see Humphries Executor for an example).
The judicial branch implications are that a part of the executive branch cannot 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.[6]
Criticism of the strong version of the theory[edit]
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]
David J. Barron (now a federal judge) and Marty 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]
Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. Some legal scholars believe however that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined "executive power."[18] Congress has delegated at least 136 distinct statutory emergency powers to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the remaining 123 are assumed by an executive declaration with no further Congressional input.[19] Congressionally-authorized emergency presidential powers are sweeping and dramatic and range from seizing control of the internet to declaring martial law.[18] This led the American magazine The Atlantic to observe that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power",[18] because, in the words of Justice Robert H. Jackson's dissent in Korematsu v. United States, the 1944 Supreme Court decision that upheld the internment of Japanese-Americans, each emergency power "lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."[18]
Contrary to claims of some authors,[20] 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."[21]
The George W. Bush administration made the Unitary Executive Theory a common feature of signing statements.[22] For example, Bush once wrote 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."[23] 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 US courts.[24]
In the states[edit]
Plural executives exist in several states where, 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. The executive branch of the Texan state government is an example of this type of executive structure.
The State of North Carolina maintains a plural executive whereby the chief executive's actions can be curbed by other elected executive officers. The group of North Carolina executive officers is known as the North Carolina Council of State and it wields fair amounts of statutory powers when approving monetary and property transactions by the state government.[25] This type of plural executive, used in Japan, Israel, Italy and Sweden is one in which a collegial body composes the executive branch – however, that collegial body does not comprise multiple members elected in elections, but is rather more akin to the US Cabinet or UK Cabinet in formation and structure.
In film[edit]
In the 2018 biographical film Vice, directed by Adam McKay, the unitary executive theory is explored in some detail and dramatized. Vice president Dick Cheney, the film's subject, his lawyer David Addington, deputy assistant attorney general in the Office of Legal Counsel John Yoo, and associate justice Antonin Scalia figure prominently in the theory's development and promotion. They brought it to the foreground of modern discussions on the topic of executive power beginning in 2001, continuing throughout the Bush administration and beyond. The application of this legal doctrine has implications for the prosecution of the War on Terror, the subsequent 2003 U.S. invasion of Iraq, the use of enhanced interrogation techniques at sites such as Guantanamo Bay and Abu Ghraib, and mass surveillance. These are highlighted in the narrative.