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Unitary executive theory

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In American political and legal discourse, the unitary executive theory (UET) (differentiate from unitary government) involves two facets: a procedural view of how the executive branch should operate, and a substantive view of the scope of executive power.

More crudely put, UET is concerned with what the President can do, and how he may do it. It is associated with conservative legal thought and the Federalist Society, and while it originally came to prominence in regard to the independent counsel law (see Morrison v. Olson), it has recently returned to the limelight with some of the actions of President George W. Bush and the Senate confirmation hearing of Judge Samuel Alito.

The theory defined

In its strict definition, the unitary executive theory emphasizes the language of the Article II §1 of the Constitution of the United States:

"The executive power shall be vested in a President of the United States of America" (emphasis added)

The unitary executive theory contends that this language vests all of the executive power of the United States in the person of the President; while the President may delegate day-to-day control to other executive agencies in the executive branch, the President is none-the-less the leader of - and therefore responsible for - all agencies operating under him. Consequentially, no part of the branch can sue another part because "the executive cannot sue himself"; moreover, if the judicial branch were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.

Procedural aspects

The defining characteristic of the unitary executive concept is the procedural aspect. At its base, the unitary executive concept is that the Constitution vests the executive power of the United States in the President, and thus the President has the power to appoint, direct and remove executive officers, and to interpret the law as it applies to the actions of the executive branch, in the absence of judicial determination. That is to say, it is a unitary executive because all executive power is exercised hierarchically beneath the President, in the same manner that all the officers of a corporation might be organized beneath a chief executive officer.

Substantive aspects

However, the unitary executive concept is often cited in terms of its substantive facet, as an expression of support for broad executive powers. Most of those who support the concept also support a latitudinarian reading of executive range of action, i.e. an empowered President, with a Congress and Judiciary that give great deference to the President.

While it may seem uncontroversial to assert that there are constitutional limitations on the judicial power, some critics see the judiciary's decisions as unreviewable by the executive branch and to be adhered to without question and exception by the executive branch, even when in the minds of the executive officer a ruling exceeds the constitutional power given to the judiciary. In effect, these critics assert that the judiciary has the constitutional right to self-define the extent of their own constitional power. Thus not only does the judiciary have the right, in their view, to be the last word on legislative and executive power under the constitution, but it also has the right to be the last word on its own judicial power under the constitution.

As for what specific constitutional limitations on the judicial power the President may have had in mind, there is heavy speculation that it relates to Professor John Yoo's position that the use of military force is, like presidential vetoes and pardons, an unreviewable matter.

It should be stressed, though, that there are spectra of views on both facets among those who believe in the unitary executive, and thus the mere statement that one agrees with the concept does not, in itself, inherently say anything about that person's view on the powers of the Presidency, which is the more controversial aspect.

U.S. courts have not explicitly ruled on the theory (but, see Morrison v. Olson), but the Justice Department has adopted it and used it to decide that the Environmental Protection Agency may not bring a legal suit against the U.S. military, since there would be only one party in the suit: the president. As a result of this, the EPA must rely upon negotiated agreements with other federal agencies, and thus has less power to enforce regulations on them than it does over private enterprises.

Application under the Bush administration

President George W. Bush has applied the theory of the unitary executive in many of his decisions, most significantly in relation to its substantive element. Per the Presentment Clause, the President must sign any bill having passed Congress before that bill becomes law; the Bush Administration has often issued Signing statements to legisation signed by the President, detailing how the executive branch will construe the law.

For instance, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:

The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.

In effect, Bush stated that when it comes to administering the executive branch, any Congressional requirements are merely advisory. It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases. Sceptics point out that he in effect uses them as line item veto although the Supreme Court already held the line item vetoes as unconstitutional in Clinton v. City of New York.[1]

In another signing statement that has garnered controversy, President Bush wrote:

The executive branch shall 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

One of the signing statements which has attracted most controversy is the signing of the McCain Detainee Amendment, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody:

“The Executive Branch shall construe [the torture ban] 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.”

Since, under the "Unitary Executive" theory, the Commander-in-Chief has broad authority to use his discretion in interpreting and applying the law, the President has with that statement reserved the right to waive the torture ban.[2]

At present, the position taken by adherents of the "unitary executive" theory, and promoted by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers can not be restrained by any law, national or international.[3][4][5] Opponents note that such a stance, resembling the Führerprinzip,[6] is not unlike the one seen in police states.[7] Supporters reply that it is exactly the same war power that Abraham Lincoln used to issue the Emancipation Proclamation in 1863, in the face of Copperheads who called him a dictator and sought his assassination. To critics this is not convinving. In addition critics point to a statement by Governor Bush in December 2000 when he joked that:

“if this were a dictatorship, it would be a heck of a lot easier – so long as I’m the dictator.”[8][9][10][11]

View of Samuel Alito

In November 2000, U.S. appeals court judge Samuel Alito gave a speech before the Federalist Society laying out this view:

"The Constitution makes the president the head of the executive branch, but it does more than that.... The president has not just some executive powers, but the executive power—the whole thing." (The Wall Street Journal, 5 January 2006, p. 1.)

In his confirmation hearing to become a member of the United States Supreme Court, he was asked about these comments, and he said:

"I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power.
"The second question is: When you have the power that is within the prerogative of the executive, who controls the executive?
"Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president." (Transcript of confirmation hearings, Tuesday, January 10, 2006)

See also

Scholarly papers

Critics

Misc

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