Unitary executive theory

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The unitary executive theory is "an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House."[1]

Advocates of the theory focus interepretations of greater executive power on Section 1 of Article Two of the United States Constitution.[2] However, critics have argued that this provision must be balanced with the broader checks and balances within the Constitution and thus limits a more unitary executive. Traditionally,[when?] the President of the United States has exercised significant authority over the executive branch, with some exceptions, including independent agencies such as the Federal Reserve, and independent personnel such as special counsels.[3][verification needed] These limits on unitary executive power can be created by the legislative branch via Congress passing legislation, or by the judicial branch via Supreme Court decisions and interpretation of the law. Since the founding of the country, positions independent of the executive have included Comptroller, Postmaster General and the Sinking Fund Commission.[3] Presidential administrations that cited the unitary executive theory started with the Reagan administration, entered the public discourse with the George W. Bush administration and grew again during and after the Trump administration.

The concept often comes up in disagreements about the president’s ability to remove employees within the executive branch, transparency and access to information, discretion over the implementation of new laws and the ability to influence rulemaking by agencies.[4] The theory is not long-established or widely accepted, but is rather controversial.[5][6][7] Beyond disputing its constitutionality,[8][9][10][11] common criticisms argue that the theory it leads to poor outcomes[12][13][14] and undermines democracy.[15][16][17][18] A few critics point to other places where this has been tried and resulted in democratic backsliding or avoided altogether[19] with, in their view, positive results, such as state and local governments that diffuse executive power more widely.[17][20][21]

Terminology

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The term "unitary executive" dates back to the Reagan administration,[1][22][23][24] though supporters of the unitary executive theory, sometimes referred to as "unitarians," contend it goes back to the founding.[25]

Theory

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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."[26] Critics point out that the clause does not specify that the President should be the one to execute the laws, but to make sure that others are faithfully executing their responsibilities. Opponents also point to the Opinion clause, which states only that a President may ask for the opinion in writing of what a Department officer thinks about any subject related to their department.[27]

Most believers in the theory think that, "at a minimum, the President should be able to remove all executive-branch officers, including the heads of independent regulatory agencies, at any time and for any reason."[28] Proponents of a strong 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.[26] However, independent regulatory commissions have existed for at least a century, and removal protections for their commissioners were upheld by the Supreme Court in Humphrey's Executor v. United States (1935). Some interpret the unitary executive theory to mean that federal courts cannot adjudicate disputes between agencies, arguing it would violate the doctrine of separation of powers.[29]

Proponents draw on claims about the powers wielded by the King of England and their relationship to the founding intent of the executive branch to justify the theory. However, the actual powers held by the Crown are disputed by legal historians as possible "conventional wisdoms" as parliament held significant power over appointments and dismissals of some executive personnel at the time.[30] Invoking the King as an argument for expanded executive power was first made by the Supreme Court in Myers v. United States (1926), a decision delivered by Chief Justice William Howard Taft, a former president of the United States.[30] Others have argued that the founding was an explicit rejection of monarchy and find the premise of looking at the powers held by a King objectionable.[31] Eric Nelson argued that some Founders wanted more checks on a president because unlike a hereditary monarch, their wellbeing was not as intrinsically tied to the nation.[32]

More 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."[33] Law Professor Ilya Somin argued in 2019 that no serious advocate of the theory claims that anything the president does is legal - just within the powers vested in the executive branch.[34]

According to law professors Lawrence Lessig and Cass Sunstein in 1994[needs update], "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."[35]:8-9 In either a stronger or a weaker form, the theory would limit the power of Congress to divest the president of control of the executive branch. The hypothetical "strongly unitary" theory posits stricter limits on Congress than the "weakly unitary" theory.[35][page needed] Parts of the Constitution, however, grant extensive powers 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." Any legitimate theory[original research?] of the unitary executive must allow Congress to wield its constitutional powers while ensuring that the president can do the same.[citation needed]

There is disagreement about the strength and scope of the doctrine. 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."[36] This stands in contrast to other scholarly literature, such as MacKenzie in 2008[citation needed] and Crouch, Rozell, and Sollenberger in 2020,[37] that stress the fact that federal employees have to faithfully execute the laws enacted according to the process prescribed in the U.S. Constitution.

Background

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Founding debate of one or multiple executives

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The phrase "unitary executive" was discussed as early as the Philadelphia Convention in 1787, and referred only 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.[38][39]

Some founders in support of limits on executive power include James Madison, who wanted federal officers to be independent of the President, and Alexander Hamilton, who initially hoped that the Senate would be required to consent before a president could remove a senior branch official.[40]

In 1788, the pseudonymous letters of the 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."[41]

Judicial decisions

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See also: Marbury v. Madison

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.[non-primary source needed] 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.[42]

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.[43]

Growth of presidential powers

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The power of the presidency has grown slowly over the decades due to key events and to Congress or the Courts not being willing to rein in presidential power. In addition, presidents rarely give up powers exercised by their predecessors.[23]

The Reagan administration took the advice in the Mandate for Leadership to hire 5000 enthusiastic supporters of the Reagan-Bush campaign to fill the 5000 new political appointee positions created by the 1978 Civil Service Reform Act.[44] The administration also made use the Office of Information and Regulatory Affairs, signed into law by Jimmy Carter in 1980, to short-circuit any regulations the administration did not agree with.[44] The Reagan era is cited as a major catalyst in growing presidential power,[23][24] with significant growth post-9/11 as conservatives have most readily embraced the idea of a unitary executive.[22][45]

Use in the Clinton administration was criticized by Elena Kagan in 2001.[46]

Dick Cheney and the George W. Bush administration supported the theory.[47] 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."[48] 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.[49] 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.[50]

Barack Obama campaigned loudly against the theory, but embraced some aspects of it after the 2010 midterm elections.[51]

Donald Trump exerted the greatest control over the executive during his Presidency than any other modern president, often citing Article II of the constitution.[23][52][37] Bill Barr notably supported the theory before his confirmation as Attorney General in 2018 memo criticizing the Russia probe.[53][54]

Project 2025 proposes using the theory as justification to give Trump or the next Republican president maximum control over the executive branch.[55] The 2024 Supreme Court ruling on Trump v. United States could make the president even more powerful, with some interpreting it as an endorsement of the unitary executive theory by the six conservative justices.[56][57]

Criticism

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Some scholars oppose even the weaker theory of a unitary executive. Some favor a plural executive, such as in the many state governments that separately elect an attorney general.[58] Others favor a view in which Congress and the president share control over the bureaucracy. Both would likely require a constitutional amendment to add these checks on the executive that are common in other democracies.

Ian Millhiser also critiques weaker versions of the theory as giving presidents power to manipulate elections and interfere with technocratic aspects of government typically removed from politics like the Federal Reserve.[59]

Graham Dodds and Christopher Kelley worry about the constitutional implications of relegating the legislative branch to secondary status as well as the implications of the theory for democracy, especially under a Trump presidency.[15]

Investigatorial independence and anti-corruption efforts of the Justice Department is a recurring theme in criticisms of the unitary executive theory.[60][61][62][14]

Steven Greenhut argues the theory is a prescription for abuse and authoritarianism.[18] Ilya Somin, also writing in Reason, argues that despite being a supporter of the logic of the theory in the past, concentrating further the amount of power the executive branch currently wields in the president would be a mistake and run contrary to the ideals of the founders who were concerned about the concentration of power.[12]

Another concern revolves around the more practical implications of a brain drain of expertise throughout the federal government.[14]

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.[10] In this understanding, Manheim and Ides follow in the footsteps of Lessig and Sunstein.[35][page needed]

David J. Barron (now a federal judge) and Marty Lederman have also criticized the unitary executive theory. They acknowledge that there is a compelling case for some form of a unitary executive within the armed forces.[63] 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.[11]

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."[64] 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.[65] Congressionally authorized emergency presidential powers are sweeping and dramatic and range from seizing control of the internet to declaring martial law.[64] 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",[64] 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."[64]

The BBC described the theory as "controversial,"[6] while The Guardian described it as "contested"[66] and a "quasi legal doctrine."[8] In 2007, Norman Ornstein wrote in the Economist that an overwhelming majority of constitutional scholars and historians find the theory to be "laughable."[9] Iam Millhiser called it a 'worst-case scenario for liberal democracy.'[59]

Executive power in other democracies

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Governors and the states

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Unitary executive theory does not exist at the state or local level in the United States. In contrast to a single elected executive officer such as the president, plural executives exist in virtually all non-national governments, with states where executive officers such as lieutenant governor, attorney general, comptroller, secretary of state, and others, are elected independently of the state's governor.[21][20]

The executive branches of Texas and North Carolina, for example, maintain 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.[67]

The New York Constitution contained Take Care and Vesting Clauses "precisely mirroring the U.S. Constitution’s clauses, but did not allow the Governor to either appoint or remove officers, vesting those functions in a council."[17]

Outside the United States

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David Driesen argues that similar reforms led to significant democratic backsliding in Turkey, Poland and Hungary.[17] He argues that unitary control over the executive is a defining characteristic of autocracy.[17]

Susan Hennessey and Benjamin Wittes said that "the American presidency, in its unity, is profoundly dissimilar from nearly all other executives in democratic systems that have persisted over time. The founders of other democracies have, quite intentionally, decided differently from the founders of this one."[19]

In film

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In the 2018 biographical film Vice, directed by Adam McKay, the unitary executive theory is explored in some detail and dramatized.[34] 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 Supreme Court justice Antonin Scalia figure prominently in the theory's development and promotion.[34] 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.[34]

See also

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References

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  1. ^ a b "The 2024 Executive Power Survey – Unitary Executive". The New York Times. 2023-09-15. ISSN 0362-4331. Retrieved 2024-07-19. Lawyers in the Reagan-era Justice Department developed the so-called unitary executive theory, an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House. Under stronger versions of this vision, Congress cannot fracture the president's control of federal executive power, such as by vesting the power to make certain decisions in an agency head even if the president orders the agency to make a different decision, or by limiting a president's ability to enforce his desires by removing any executive branch official — including the heads of "independent" agencies — at will.
  2. ^ Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, p. 540, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18 "Unitarians fixate on the wording of Article II’s 'Vesting' clause (versus the wording in Articles I and III), arguing that the president alone has all the executive power, which means any power that is executive in nature, even if it is not directly listed in the Constitution, belongs to the president.
  3. ^ a b Chabot, Christine Kexel (2020-11-13). "Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies". Notre Dame Law Review.
  4. ^ Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, p. 541, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18
  5. ^ Dodds, Graham G. (2023), Akande, Adebowale (ed.), "Is the President a King? The Unitary Executive Theory and the Presidency of Donald J. Trump", U.S. Democracy in Danger: The American Political System Under Assault, Cham: Springer Nature Switzerland, pp. 487–517, doi:10.1007/978-3-031-36099-2_21, ISBN 978-3-031-36099-2, retrieved 2024-07-12
  6. ^ a b Wendling, Mike (July 7, 2024). "Project 2025: A wish list for a Trump presidency, explained". BBC. ...a controversial idea known as 'unitary executive theory'
  7. ^ Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, p. 547, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18
  8. ^ a b Pilkington, Ed (2024-06-07). "Trump plots capture of DoJ in renewed assault on US justice system". The Guardian. ISSN 0261-3077. Retrieved 2024-07-11.
  9. ^ a b Ornstein, Norman (June 26, 2007). "Blog: Cheney's chutzpah". The Economist. ISSN 0013-0613. Retrieved 2024-07-11.
  10. ^ a b Manheim, Karl; Ides, Allan (September 2006). "The Unitary Executive". Los Angeles Lawyer. SSRN 943046. Loyola-LA Legal Studies Paper No. 2006-39.
  11. ^ a b Barron, David; Lederman, Martin (2008). "The Commander in Chief at the Lowest Ebb: A Constitutional History". Harvard Law Review. 121. Cambridge, Massachusetts: Harvard University: 941. Archived from the original on January 24, 2009. 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.
  12. ^ a b Somin, Ilya (2018-05-03). "Rethinking the Unitary Executive". Reason.com. Retrieved 2024-07-20. UPDATE: I perhaps should have mentioned the oft-made argument that maintaining a unitary executive—even when it comes to powers beyond the scope of the original meaning of the Constitution—is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Moreover, it becomes difficult to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability.
  13. ^ Pilkington, Ed (2024-06-07). "Trump plots capture of DoJ in renewed assault on US justice system". The Guardian. ISSN 0261-3077. Retrieved 2024-07-19. 'That's what happens in authoritarian states – there is a semblance of a legal system, but it becomes useless,' she said. 'If that happens here it would be extremely troubling. We're not there yet. But I do think a second term could cause significant damage that may or may not be permanent.'
  14. ^ a b c "How MAGA Republicans plan to make Donald Trump's second term count". The Economist. July 13, 2023. ISSN 0013-0613. Retrieved 2024-07-19. One reason for the professionalisation of the bureaucracy in the 19th century was to provide the ship of state with enough ballast to keep sailing from one administration to the next...The vain and tyrannical whims of an emperor-president would emerge from the rubble.
  15. ^ a b Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, pp. 548, 550–551, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18 "Turning devoted public servants into mere servants of their master and by privileging presidential desires over institutional expertise and independence, the theory risks turning the chief executive into an absolute monarch. Moreover, by enlarging the already considerable powers of the presidency, it threatens to upset the country’s delicate inter-branch balance by relegating Congress and the judiciary to inferior status...Trump showed us what happens when you support the use of such power with a person who appears to care little about the institution, the Constitution, or America’s democracy....Thus the United States could see the unitary executive theory employed to significantly erode basic democratic principles."
  16. ^ Howell, William; Moe, Terry (2021-11-01). "Analysis | Big government vastly expanded presidential power. Republicans use it to sabotage the administrative state". Washington Post. ISSN 0190-8286. Retrieved 2024-07-20. The unitary executive theory provides a veneer of legal authority for an authoritarian-inclined president to engage in a range of anti-democratic behaviors. By the time George W. Bush had shown what the unitary executive could justify — torturing prisoners, surveilling ordinary citizens, ignoring congressional statutes — constitutional scholars were already pointing to presidents as the chief threat to American democracy. With the rise of right-wing populism and the election of Trump in 2016, this threat was magnified by the accompanying transformation of the Republican Party itself, with its elites in Washington and around the country abetting Trump's authoritarian behavior in office...The Republican Party is now an anti-democracy party, and its future presidents — empowered by the unitary executive theory — threaten the fundamentals of the U.S. democratic system...Democrats have been complicit, but Republicans have pushed the trajectory beyond democratic bounds.
  17. ^ a b c d e Driesen, David (2020-11-01). "The Unitary Executive Theory in Comparative Context". UC Law Journal. 72 (1): 1. ISSN 0017-8322.
  18. ^ a b Greenhut, Steven (2024-06-28). "Project 2025: The Heritage Foundation's plan to embrace bigger government during Trump's second term". Reason (magazine). Retrieved 2024-07-11. But implementing what critics call "unitary executive theory"—i.e., putting all aspects of the federal government under the control of the president—is a prescription for authoritarianism and abuse.
  19. ^ a b Hennessey, Susan; Wittes, Benjamin (2020-01-21). "The Disintegration of the American Presidency". The Atlantic. Retrieved 2024-07-20. But the American system gets sticky when you contemplate vesting the executive power in one person who cannot be easily removed when that person is as mercurial and peculiar as Trump. In such situations, the structure can start to seem downright reckless. In concentrating power so that this person directs the federal government to do things—and in making this person exceptionally difficult to depose for a protracted period of time—one has to have a certain amount of confidence in that person's intentions and abilities.
  20. ^ a b Gersen, Jacob; Berry, Christopher R. (March 2008). "The Unbundled Executive". University of Chicago Public Law & Legal Theory Working Paper No. 214, 2008: 10–11. SSRN 1113543. Indeed, partial unbundling of executive authority is the norm rather than an exception in virtually all levels of non-national government units in the United States, of which there are more than 80,000. Authority that the governor or mayor would otherwise exercise is frequently given to a specific state or local officer. Often these officers are directly elected by the public. Other times they are elected by the legislature; other times still, they are appointed by another state official. These arrangements are only approximations of the unbundled executive ideal because they there is residual responsibility or authority for the policy in the general purpose executive...The average number of elected executive offices per state was 6.7 in 2002...
  21. ^ a b Berry, Christopher R.; Gersen, Jacob E. (2008). "The Unbundled Executive". The University of Chicago Law Review. 75 (4): 1399–1400. ISSN 0041-9494.
  22. ^ a b Rosen, Jeffrey (July 2, 2024). "Immunity ruling continues a trend of expanding presidential power, scholar says". NPR.
  23. ^ a b c d Thunberg, Michael E. (2021-12-01). "The Unitary Executive Theory: A Danger to Constitutional Government". Political Science Quarterly. 136 (4): 770–771. doi:10.1002/polq.13274. ISSN 0032-3195.
  24. ^ a b Mosley, Tonya (December 14, 2023). "Why a second Trump administration may be more radical than the first". Fresh Air on NPR.
  25. ^ Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, p. 540, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18 "The term 'unitary executive' dates to the 1980s, but unitarians contend that the idea goes back to the founding era."
  26. ^ a b Calabresi, Steven & Rhodes, Kevin (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review. 105 (6): 1165. doi:10.2307/1341727. JSTOR 1341727.
  27. ^ Strauss, Peter L. (2024-03-05). "Overseer or "The Decider"? The American President in Administrative Law". Faculti (Video lecture). Retrieved 2024-07-13.
  28. ^ Birk, Daniel D. (January 2021). "Interrogating the Historical Basis for a Unitary Executive" (PDF). Stanford Law Review. 45 (6): 2177. ISSN 0038-9765. See CALABRESI & YOO , supra note 1, at 3-4; see also, e.g., Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 A LA. L. REV . 1205, 1225 (2014) (asserting that "[f]or adequate constitutional control of execution, the President must have the possibility of directing discretionary legal duties, even those assigned to other officers," and thus must be able to remove all executive officers, including the heads of independent agencies); John Harrison, Addition by Subtraction, 92 VA. L. REV . 1853, 1859-62 (2006) (characterizing executive-branch officers as "agents" of the President whom the President must be able to remove if they do not retain his trust); cf. Morrison, 487 U.S. at 724 n.4 (Scalia, J., dissenting) (contending that the President must have "plenary power to remove [all] principal officers," but that inferior officers can be made "removable for cause" so long as their appointing officers can dismiss them for "the failure to accept supervision" (emphasis omitted))
  29. ^ Latham, Joshua (2000). "The Military Munitions Rule and Environmental Regulation of Munitions". Boston College Environmental Affairs Law Review. 27. Boston, Massachusetts: Boston College: 467.
  30. ^ a b Birk, Daniel D. (January 2021). "Interrogating the Historical Basis for a Unitary Executive" (PDF). Stanford Law Review. 45 (6): 2177. ISSN 0038-9765. As this Article shows, however, the unitarians' claims about the original meaning of the executive power are largely unfounded. The ability to remove executive officials was not one of the prerogative powers of the British Crown. Moreover, the King neither appointed nor was able to remove all of his principal officers, many of whom held their offices for life or pursuant to other forms of tenure and who operated independent of the King's direction or control.
  31. ^ Shoenberger, A. (2021). The Unitary Executive Theory Is Plainly Wrong and Anti-American: “Presidents Are Not Kings.” Albany Law Review, 85(4), 88–107.
  32. ^ Nelson, Eric (July 9, 2024). "Justice Sotomayor was right for the wrong reasons". The Economist. ISSN 0013-0613. Retrieved 2024-07-11.
  33. ^ Dean, John (2007). Broken Government. Viking. p. 102. ISBN 9780670018208. unitary executive.
  34. ^ a b c d Greenberg, Jon. "What Vice gets right and wrong about Dick Cheney". Politifact. Retrieved 2024-07-11.
  35. ^ a b c Lessig, Lawrence & Sunstein, Cass (1994). "The President and the Administration". Columbia Law Review. 94 (1): 1–123. doi:10.2307/1123119. JSTOR 1123119.
  36. ^ Calabresi, Steven; Yoo, John (2008). The Unitary Executive: Presidential Power from Washington to Bush. p. 3.
  37. ^ a b Crouch, Jeffrey; Rozell, Mark J.; Sollenberger, Mitchel A. (2020). The Unitary Executive Theory: A Danger to Constitutional Government. University Press of Kansas. doi:10.2307/j.ctv1ft83xf. ISBN 978-0-7006-3004-2.
  38. ^ Ketchum, Ralph, ed. (1986). The Anti-Federalist Papers and the Constitutional Convention Debates. Signet Classic. 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.
  39. ^ "Records of the Federal Convention, Article 2, Section 1, Clause 1". The Founder's Constitution. 1787.
  40. ^ Millhiser, Ian (2020-02-14). "How Justice Scalia paved the way for Trump's assault on the rule of law". Vox. Retrieved 2024-07-20.
  41. ^ Ellis, Richard (1999). Founding the American Presidency. Lanham, Maryland: Rowman & Littlefield. p. 39. ISBN 9780847694990.
  42. ^ Myers v. United States, 272 U.S. 52 (1926).
  43. ^ Calabresi, Steven & Lawson, Gary (2007). "The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia" (PDF). Columbia Law Review. 107: 1002–1047. Archived from the original (PDF) on 6 March 2009.
  44. ^ a b Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, p. 542, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18
  45. ^ Krotoszynski, Ronald (December 10, 2020). "The Conservative Idea That Would Let Biden Seize Control of Washington". Politico.
  46. ^ Mears, Bill (May 10, 2010). "High court contender Kagan brings reputation for consensus-building". CNN. Retrieved 2024-07-11.
  47. ^ Johnsen, Dawn (April 2008). "What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses" (PDF). Boston University Law Review. 88: 395. 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.'
  48. ^ Lazarus, Edward (January 5, 2006). "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. 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.
  49. ^ Van Bergen, Jennifer (January 9, 2006). "The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?". Findlaw. 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. ...
  50. ^ Liptak, Adam (2006). "Few Glimmers of How Conservative Judge Alito Is". The New York Times. p. A1. Retrieved 2 November 2017.
  51. ^ Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, p. 545, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18
  52. ^ Dodds, Graham G. (2023), Akande, Adebowale (ed.), "Is the President a King? The Unitary Executive Theory and the Presidency of Donald J. Trump", U.S. Democracy in Danger: The American Political System Under Assault, Cham: Springer Nature Switzerland, pp. 487–517, doi:10.1007/978-3-031-36099-2_21, ISBN 978-3-031-36099-2, retrieved 2024-07-12
  53. ^ McCarthy, Tom (2019-01-13). "Trump's attorney general pick raises fears of a president above the law". The Guardian. ISSN 0261-3077. Retrieved 2024-07-11.
  54. ^ Deconstructed (2020-05-21). "Deconstructed Podcast: Is Bill Bar the Most Dangerous Trump Official?". The Intercept. Retrieved 2024-07-11.
  55. ^ Wrona, Aleksandra; Nur, Ibrahim (2024-07-11). "The Facts About Project 2025: The Pro-Trump Proposal To 'Reshape America'". Snopes. Retrieved 2024-07-19. Project 2025 authors built their proposals on an idea popular during former President Ronald Reagan's time: the 'unitary executive theory.'...Overall, critics including legal experts and former government employees have zeroed in on Project 2025's goal to give the executive branch more power, describing it as a precursor to authoritarianism.
  56. ^ The Project 2025 plan and Trump's links to its authors. PBS News Hour. July 9, 2024. Retrieved 2024-07-11.
  57. ^ Tucker, Eric (July 2, 2024). "Supreme Court opinion conferring broad immunity could embolden Trump as he seeks to return to power". Associated Press. 'This is a full-throated endorsement of the unitary executive theory' in a dramatic way, said Cornell University law professor Michael Dorf, referring to the theory that the U.S. Constitution gives the president expansive control over the government's executive branch.
  58. ^ Berry, Christopher & Gersen, Jacob (2008). "The Unbundled Executive". University of Chicago Law Review. Chicago, Illinois: University of Chicago. SSRN 1113543. Archived from the original on August 7, 2011. We certainly do not claim that the most sensible or even any plausible interpretation of the US Constitution establishes a plural unbundled executive; but perhaps it should
  59. ^ a b Millhiser, Ian (2023-11-21). "A Supreme Court case about stocks could help make Trump's authoritarian dreams reality". Vox. Retrieved 2024-07-20. There are weaker versions of the unitary executive theory that wouldn't allow the president to fire every FBI agent who refuses to swear personal fealty. But even these weaker versions could potentially give presidents power to manipulate elections, and to interfere with technocratic aspects of government that historically have been removed from partisan politics, such as the Federal Reserve...And, of course, looming over all of this is Trump, with his plan to replace much of the civil service with people personally loyal to him. In the worst-case scenario for liberal democracy, the Supreme Court could use the Jarkesy case to greenlight many of Trump's most authoritarian aspirations.
  60. ^ Millhiser, Ian (2020-02-14). "How Justice Scalia paved the way for Trump's assault on the rule of law". Vox. Retrieved 2024-07-20. The facts of Morrison also highlight why prosecutorial independence is sometimes desirable. That case involved an investigation into one of the seniormost officials within the Justice Department. A rank-and-file prosecutor would understandably fear the professional consequences of leading such an investigation — for the same reason that I would be reluctant to conduct an investigation into one of Vox Media's top executives.
  61. ^ Shugerman, Jed Handelsman (July 6, 2020). "The Imaginary Unitary Executive". Lawfare. Retrieved 2024-07-18.
  62. ^ Dorf, Michael C. (2023-06-19). "Opinion: The Misguided Unitary Executive Theory Gains Ground". Justia. Retrieved 2024-07-18. Not only is the unitary executive theory writ large ahistorical...
  63. ^ Barron, David; Lederman, Martin (2008). "The Commander in Chief at the Lowest Ebb: Framing The Problem, Doctrine, And Original Understanding". Harvard Law Review. 121. Cambridge, Massachusetts: Harvard University: 689. Archived from the original on January 25, 2009. 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.
  64. ^ a b c d Goitein, Elizabeth (January–February 2019). "The Alarming Scope of the President's Emergency Powers". The Atlantic. Archived from the original on April 1, 2020. Retrieved 1 April 2020.
  65. ^ "A Guide to Emergency Powers and Their Use". Brennan Center for Justice at New York University School of Law. Archived from the original on April 1, 2020. Retrieved January 7, 2019.
  66. ^ Pengelly, Martin (2023-09-15). "US hard-right policy group condemned for 'dehumanising' anti-LGBTQ+ rhetoric". The Guardian. ISSN 0261-3077. Retrieved 2024-07-11.
  67. ^ "North Carolina State Government - The Executive Branch - Council of State". www.carolana.com. Retrieved 2021-04-30.

Further reading

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