Unitary Executive Theory

The Constitution

Unitary executive theory is a model of executive power proposed by constitutional law experts and neoconservative intellectuals such as Steven G. Calabresi, John Yoo and Harvey C. Mansfield. It argues that all executive power is derived from the presidency and is inherently granted by the Constitution, ignoring important features such as the ability of other branches to check, balance, and ultimately limit a president should he be out of control.^[1] For example, a unitary president could use executive orders as a way to get around congress, disrespecting constitutional jurisprudence.^[2]

Calabresi and Yoo (2008) argue that all presidents have viewed the power to supervise and remove subordinates as central to the very meaning of "executive power" in Article II of the Constitution. Without such an ability, presidents would be unable to execute the law effectively and place their stamp on the administration. They demonstrate that every president has embraced a conception of the unitary executive that at least encompasses the powers to remove and supervise their subordinates' exercise of delegated authority so as to create one centralized executive branch. They attack the Supreme Court's decision in Morrison v. Olson^[3] for permitting Congress to limit the executive's removal authority over agency officials, saying the existence of independent agencies cannot be squared with the historical recognition of the importance of the president's removal authority.

The theoretical basis of the model stems from two clauses in the Constitution:

• The "Take Care" clause: "The President shall take care that the laws be faithfully executed..."
• The "Vesting" clause: "the executive Power shall be vested in a President of the United States of America."

Based on these clauses it then becomes evident that all laws must be consistent with the power of the unitary executive. If a law is made that places restrictions on this power, those restrictions must themselves be imposed by the executive branch on itself.

Since the "Vesting" clause places all executive power ultimately in the president, such a law would necessarily cause the president to enforce laws against himself, which would be an inherent contradiction in the law. Any such law would in effect be a law that says "by this law, this law shall not be enforced."^[4]

Critics contend that the founding fathers' "original intent" provides no clear evidence for a "unitary executive" whose decisions necessarily trump those of the other branches.

During the Presidency of George W. Bush (2001–09) critics said the unitary model gave the presidency more power than it should have according to the Founding Fathers, and that it was leading to what they termed an imperial presidency. However neoconservative intellectual and Harvard professor Harvey Mansfield one of the chief proponents of the theory pointed out why such a criticism does not make sense:

“If the executive is an adversary of the law, how can he carry out the function of enforcing it?” ^[5]

Advocates

• Calabresi, Steven G. and Christopher S. Yoo. The Unitary Executive: Presidential Power from Washington to Bush (2008)
  • Calabresi, Steven G. and Christopher S. Yoo. "The Unitary Executive During the First Half-Century." Case Western Reserve Law Review 47 (1997): 1451–1561.
  • Calabresi, Steven G. and Christopher S. Yoo. "The Unitary Executive During the Second Half-Century." Harvard Journal of Law & Public Policy 26 (2003): 667–801.
  • Yoo, Christopher, Steven G. Calabresi, and Laurence D. Nee. "The Unitary Executive During the Third Half-Century, 1889–1945." Notre Dame Law Review 80 (2004): 1–109.
  • Yoo, Christopher, Steven G. Calabresi and Anthony J. Colangelo. "The Unitary Executive in the Modern Era, 1945–2004." Iowa Law Review 90 (2005): 601–731.
• Mansfield, Harvey C., Jr. Taming the Sovereign: The Ambivalence of Modern Executive Power (1993).

Critics

• Krent, Harold J. "The Unitary Executive: Presidential Power from Washington to Bush," Constitutional Commentary v. 25 #3 2009 pp 489+. in Questia, criticism of Calabresi and Yoo (2008)
• Waterman, Richard W. "The Administrative Presidency, Unilateral Power, and the Unitary Executive Theory," Presidential Studies Quarterly 2009 39(1): 5-9 in Questia

• Federalist No. 70