Unitary executive theory

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In American political and legal discourse, the unitary executive theory is a theory or doctrine of Constitutional interpretation that holds it is unconstitutional for Congress to create "independent" agencies, authorities, or other entities that exercise executive, and sometimes quasi-legislative or quasi-judicial, powers, governed by officials the President may be authorized to nominate, perhaps with the advice and consent of Congress, but he is not authorized to remove or discipline. It stems from an interpretation of the separation of powers and of Article II of the U.S. Constitution, that only the President is vested with the power to execute the laws in the executive branch.

Contents 1 The theory 2 The legal status of the unitary executive 3 Executive powers of U.S. administrations 3.1 The Jefferson administration 3.2 The Jackson administration 3.3 The Lincoln administration 3.4 Andrew Johnson Impeachment 3.5 The Theodore Roosevelt administration 3.6 The Franklin D. Roosevelt administration 3.7 The Truman administration 3.8 The Nixon administration 3.9 The Clinton Administration 3.10 The George W. Bush administration 4 Notes 5 See also 6 Additional notes 7 References 7.1 Law review publications 7.2 Criticism 7.3 Misc 8 External links

[edit] The theory

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive theory use this language along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."^[1]

The theory argues for strict limits to the power of Congress to divest the President of control of the executive branch.

Proponents of the 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 unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power, not controlled by the President.^[2]

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.

The theory has been associated with conservative legal thought and members of the Federalist Society, and originally came to prominence in regard to the independent counsel law (see Morrison v. Olson).

Legal expert Morton Rosenberg of the non-partisan Congressional Research Service contends that Alexander Hamilton believed that a unitary executive's power was "confined to commerce, banking, and monetary policy" [3].

[edit] The legal status of the unitary executive

U.S. courts have not explicitly ruled on the theory, though there are two published opinions that relate to the claims of the theory. Chief Justice Taft, writing for the majority in Myers v. United States derived an unlimited presidential removal power over executive department subordinates. This case was significantly narrowed by subsequent Supreme Court cases such as Humphrey's Executor, United States v. Nixon and Bowsher v. Synar. 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 Justice Department has used the unitary executive theory 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.

The power of the executive as defined by the Constitution must be weighed against specific grants of exclusive power the Constitution gives to Congress, such as 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"; that the Constitution grants Congress the exclusive power "To make Rules for the Government and Regulation of the land and naval Forces"; that the Constitution specifically obligates the President to "take Care that the Laws be faithfully executed", where the "Laws" are defined as that which the Congress has the exclusive power to pass.^{[4] [5]} They have also indicated that in every single Supreme Court case involving a statutory restriction of the power of the President, the statute has been upheld, including several in which the statute was only held to imply the limitation on Presidential power, let alone explicitly limit it; ^[6] that the phrase "unitary executive" that was discussed in the Constitutional Convention referred merely to having a single individual fill the office of President, as proposed in the Virginia Plan, rather than 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 ^{[7] [8]}; and that the Constitutional Convention debates show that the Founders' primary concern behind whether to have a single executive or an executive council was to choose the one that would ensure that the executive would be relatively weaker and more easily restrained by the legislature; that those who argued for a unitary executive advanced the argument because they considered that the best way to limit the executive’s power and keep it subordinate to the legislature, in opposition to arguments that a plural executive would support the executive’s independence; and the term "unitary executive" was thereby bound up with the intention of keeping executive power checked and restrained. ^[9]

For example, James Wilson emphasized the advantage of greater accountability with a single chief executive:

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... 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. ^[10]

Under the theory, the President's appointed subordinates would merely be his instrumentalities, incapable of separate action. Opponents of the theory therefore question why Congress has to advise and consent to their appointment (under Article II) if those subordinates are merely extensions of the Presidential will (why should the President have to get the consent of others to appoint his "bodily parts"?). Other opponents of the theory question why the Framers chose to explicitly grant to the President the power to "require the opinions" of his subordinates under Article I, as if the unitary executive theory is true, then the subordinates would only be instrumentalities of the President's will, and thus be incapable of having any opinion cognizable by the Constitution and the law of the land. These inconsistencies may show that although the Framers may have supported a hierarchical executive under a single President, they did not intend for there to be a homogeneous "unitary executive".

[edit] Executive powers of U.S. administrations

[edit] The Jefferson administration

On his Inauguration Day in 1801, Thomas Jefferson selectively voided 25 of the 42 judicial commissions approved by the Senate, that were nominated by the previous Adams Administration. This resulted in the landmark Supreme Court opinion Marbury v. Madison.

[edit] The Jackson administration

In 1831 Andrew Jackson refused to recognize a decision by the United States Supreme Court that exempted the Cherokee nation from Georgia state law and recognized that they had a right to self-government. The Judicial branch was powerless to force Jackson to enforce their opinion.

[edit] The Lincoln administration

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads" (those in the Union who supported the Confederate cause). However, he also wrote to Congress soon afterward asking them to retroactively pass a law authorizing his actions, implicitly recognizing that only it could legally suspend the writ of habeas corpus.

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan that the suspension had been unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed.

[edit] Andrew Johnson Impeachment

President Andrew Johnson was impeached by the House of Representatives on the grounds that he had replaced a member of his cabinet, in contradiction to a law Congress had passed expressly to prevent him from doing so called the Tenure of Office Act. After impeachment, a trial was held in the US Senate in accordance with the US Constitution, but none of the articles of impeachment won the required vote and Andrew Johnson remained in office. This situation appears to be relevant to the Unitary Theory, since the outcome of the controversy was that Johnson was not removed from office by Congress for firing cabinet members in a manner that was contrary to the will of Congress.

[edit] The Theodore Roosevelt administration

Roosevelt believed that extended presidential powers allowed him to best serve his country with quick, vigorous decisions, although he also explicitly recognized his obligation as president to submit to the legislature. He wrote in his Autobiography:

I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. (198)

[edit] The Franklin D. Roosevelt administration

Later President Franklin D. Roosevelt ordered the internment of 120,000 individuals of Japanese descent. However, his administration submitted to the authority of the judicial process in reviewing this action. The action was eventually allowed to stand because it was approved by the Supreme Court.

In 1984 the same Supreme Court verdict (Korematsu v. United States, 1944) was overturned under a writ of error coram nobis, acknowledging the Japanese American internment as an un-Constitutional act by the U.S. government.

[edit] The Truman administration

President Harry Truman sought to take over the United States steel industry, in an attempt to prevent a labor dispute, during the Korean War with Executive Order 10340^[11].

Owners of the steel mills sued the Federal Government, claiming the Federal takeover of the steel mills was unlawful. The Supreme Court agreed, finding Truman's executive order seizing the steel mills to be contrary to statute and the Constitution, in the case of Youngstown Sheet & Tube Co. v. Sawyer, decided in 1952.

Justice Jackson wrote the most famous opinion in this case, delimiting three spheres of power in which the President and Congress could act. He found that the power of the President is at its apex when acting in accord with the express or implied will of Congress; the power of the President is lessened when acting without the express authorization of Congress; and the power of the President is at its lowest ebb, when acting contrary to the express or implicit will of Congress. He further found that the Congress had failed to authorize seizure of private industry during a national crisis, even though it was brought to their attention; therefore, any Presidential claim to be authorized to do so was highly questionable, as the President acted contrary to the implicit will of Congress.

The decision has had a broad impact, since it represented a check on the broadest claims of executive power at the time. It also represented the Court's assertion of its own role in arbitrating matters that it might previously have considered political, and therefore potentially unjusticiable; the Court entered into these matters further in Baker v. Carr and Powell v. McCormack.

The Court also applied the Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action in invalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, while citing it more generally in support of its decision to permit litigation against the President to proceed in Clinton v. Jones.

[edit] The Nixon administration

In 1970, White House Aide Tom Charles Huston drafted a domestic intelligence strategy that included elements such as domestic burglary, illegal wiretaps, and the opening of mail of alleged domestic radicals. President Nixon originally ratified the "Huston Plan" despite its facial illegality, then withdrew his ratification under pressure from FBI director J. Edgar Hoover and Attorney General John Mitchell. During the later investigation of this plan by the Church Committee, Nixon justified his approval of the Huston Plan as follows:

"It is quite obvious that there are certain inherently governmental actions which if undertaken by the sovereign...are lawful but which if undertaken by private persons are not.... But it is naive to attempt to characterize activities a President might authorize as 'legal' or 'illegal' without reference to the circumstances under which he concludes that the activity is necessary."

(Answer of Richard M. Nixon to Senate Select Committee Interrogatory 34, 3/9/76, pp. 16-17, quoted in Church Committee Final Report Book 2) ^[12]

In 1971, Nixon tried to enjoin the publication of the Pentagon Papers by applying for an injunction in the courts and accepted the Supreme Court's decision permitting publication of the papers.

However, in response to the leak of the Pentagon Papers, Nixon then formed a special White House unit known as "the Plumbers". Officers of the administration of Richard M. Nixon, including at least John Mitchell and members of Nixon's campaign staff approved unlawful break-ins committed by the Plumbers. President Nixon then used his executive powers to impede the resulting investigation. The Church Committee investigated other executive misconduct, including wiretaps against those who opposed the Vietnam War. Ultimately, Nixon avoided impeachment proceedings by resigning. For more information, refer to the Watergate scandal.

In response to Operation Shamrock, Operation Minaret, and the transgressions by the Nixon administration, which all involved abuses by the NSA, the 1978 Foreign Intelligence Surveillance Act was adopted.^[13]

[edit] The Clinton Administration

Bill Clinton objected to provisions in a bill establishing a semi-autonomous National Nuclear Security Administration, which set out the reasons for removing the director. Clinton objected that such a measure would impinge on his presidential prerogatives (specifically the alleged Presidential powers to interpret and execute measures under the US Constitution, even contrary to the will of Congress, or in the absence of court order.)

[edit] The George W. Bush administration

The Bush administration has interpreted the theory more expansively than previous administrations. As for what specific constitutional limitations on the judicial power President George W. Bush may have in mind, the argument used by the President and his supporters is widely regarded as consistent with legal positions promulgated by John Yoo, particularly as recorded in several of his legal memoranda while working at the Department of Justice's Office of Legal Counsel under Bush. Yoo's positions include that the use of military force is, like presidential vetoes and pardons, an unreviewable matter. Yoo's opinions are widely seen by legal scholars as controversial and contrary to most scholars' understanding of the Constitution. Rejecting the applicability of the arguments previously stated in support of such views, many argue that these views seem to have little basis in either the text or the history of constitutional law and this is seen by many to lend further credence to the skepticism regarding the validity of the arguments; indeed, Glenn Greenwald argues that Mr. Yoo's arguments echo what could be called "An Ideology of Lawlessness"^[1]

The Yoo position is supported by David Addington, former counsel and current chief of staff to the Vice President, who advocates a new paradigm, involving extreme flexibility of Presidential power.^[2]

President Bush has applied the theory of the "unitary executive" in a wide range of substantive issues, often issuing signing statements detailing how the executive branch will construe legislation. President Bush issued at least 132 signing statements from 2001 to July of 2006, fewer than either Bill Clinton and George H.W. Bush.^[14]

Of the 132 signing statements by President Bush, 110 of them have addressed specific constitutional issues, typically regarding attempts by Congress to infringe upon Constitutional powers specifically delegated to the Executive Branch. For example, 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."^[15]

In effect, Bush stated that when it comes to several areas of foreign policy, the provisions discussed in his signing statement 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. Indeed, it can be argued that he is stating ahead of time the position he will also later defend in court, and that this does not imply rejection of subsequent court decisions, but a pre-statement to the courts. Skeptics point out that he in effect uses them as line-item veto although the Supreme Court already held the line item veto as unconstitutional in "Clinton v. City of New York".^[16] Another signing statement that has garnered controversy is the signing of the Detainee Treatment Act, prohibiting cruel, inhumane and degrading treatment of detainees in U.S. custody. President Bush wrote in part:

"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."^[17]

Some analysts contend the President has, with that statement, reserved the right to waive the act.^[18] It might be interpreted as a position he is prepared to argue in court when such a subject might be adjudicated. The NSA warrantless domestic surveillance program is another example of the Bush administration's application of its interpretation of executive power, which has led to much criticism.^[19] For example former Vice President Al Gore stated the following:

"A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.""

"An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.""^[20]

Under the Bush administration, the United States Department of Justice has ruled that the Environmental Protection Agency may assess administrative penalties against federal agencies (e.g. the Department of Defense) pursuant to Congressional authorization, notwithstanding the unitary executive theory.^[21] Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international.^[22] Others note that the view Yoo advocates, closely resembles the Führerprinzip,^[23] and is similar to the one seen in police states.^[24] Still others point to Jefferson's warning that the Tenth Amendment was needed to keep the Federal branches from monopolizing adjudication of rights, a danger further specified today by alleged attempts by the legislative and especially judicial branches to claim such a monopoly in a way that overwhelms the legitimate prerogatives of the states and of the federal executive branch. Supporters contend that the constitutional war powers they assert are exactly the same war powers that Abraham Lincoln used to issue the Emancipation Proclamation in 1863 in the face of Copperheads, and that cases like Ex Parte Milligan should be distinguished from subsequent Supreme Court cases such as Ex Parte Quirin to which the administration refers as basis for the application of enemy combatant status.^[25] This position ignores the fact that in Milligan, the Supreme Court explicitly ruled that the Presidential claim of exceptional war powers was unconstitutional, whereas Quirin does not involve special war powers but merely discusses habeas corpus based on enemy combatant status. In addition to that, the validity of Quirin as a basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions has been disputed.^[3][4][5] A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.^[6]

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of U.S. municipal law, in accordance with Article 6, paragraph 2, of the Constitution of the United States.^[7] The cases which are currently making their way through the U.S. judicial system should clarify the U.S. administration's domestic legal position and its international treaty obligations.^[8] Legal experts Scott Horton, David Abraham, Ahmad Chehab, Arthur Versluis suggested that the concept of the "unitary executive," as interpreted by the Bush administration, appears to be based upon Carl Schmitt's state of exception.^[9][10]

[edit] Notes

[edit] See also

• Constitutional dictatorship
• Independent agencies of the United States government
• Federal Reserve Board
• Führerprinzip
• Executive branch
• Extraordinary rendition
• Imperial Presidency
• John Yoo
• Military Commissions Act of 2006
• National Security and Homeland Security Presidential Directive
• Samuel Alito
• Signing statement
• The Imperial Presidency
• Thorough
• Ticking time bomb scenario
• Unlawful combatant
• War on terror

[edit] Additional notes

[edit] References

[edit] Law review publications

• Calabresi & Rhodes (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review 105: 1555–1216. doi:10.2307/1341727. 
• Calabresi (1994). "Some Normative Arguments for the Unitary Executive". Arkansas Law Review 48: 23. 
• Calabresi & Prakash (1994). "The President's Power to Execute the Laws". Yale Law Journal 104: 541-. doi:10.2307/797113. 
• Yoo & Calabresi (1997). "The Unitary Executive during the First Half-Century". Case Western Reserve Law Review 47: 1451–1561. 
• Yoo & Calabresi (2003). "The Unitary Executive during the Second Half-Century". Harvard Journal of Law & Public Policy 26. 
• Yoo, Calabresi & Nee (2004). "The Unitary Executive During the Third Half-Century, 1889-1945" (abstract). Notre Dame Law Review 80. 
• Yoo, Calabresi & Nee (2005). "The Unitary Executive in the Modern Era, 1945-2004" (abstract). Iowa Law Review 90 (2): 601. 
• Percival, Robert V. (2001). "Presidential Management of the Administrative State: The Not-So-Unitary Executive". Duke Law Journal 51: 963. doi:10.2307/1373182. 
• Christopher S. Kelley (2005). "Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency".

[edit] Criticism

• Big Brother is watching you (and blowing it), Elizabeth de la Vega, Salon, January 18 2006
• Chinese Detainees' Lawyers Will Take Case to High Court, Carol D. Leonnig, Washington Post, January 17, 2006
• Tyrant in the White House - Bush Crosses the Rubicon, Paul Craig Roberts, for CounterPunch, January 16, 2006
• Is George Bush Above the Law?, The Crisis Papers
• Bush Advisor Says President Has Legal Power to Torture Children By Philip Watts
• "At the Zenith of His Powers": The Unitary Executive and Inalienable Rights By Michael Peabody
• What Bush Wants to Hear By David D. Cole
• The Hidden Power by Jane Mayer for The New Yorker; on David Addington.

[edit] Misc

• Chapter Two—The Unitary Executive Christopher S. Kelley, Miami University
• The Military Munitions Rule and Environmental Regulation of Munitions Joshua E. Latham, Boston College
• The New Imperial Presidency Andrew Rudalevige, Dickinson College

[edit] External links

• DoD Bill Signing Statement (Example of a signing statement issued by President Bill Clinton)