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August 06, 2007

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» Defining the Unitary Executive: from The Volokh Conspiracy
Cass Sunstein has a useful post on the idea of the "unitary executive" at the University of Chicago Law School blog. the aim of the post is to exp... [Read More]

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SOME PEOPLE SEEM TO THINK THAT "UNITARY EXECUTIVE" is some sort of neoconservative code word for "dictator." Cass Sunstein explains the truth.... [Read More]

» Distinguishing the Scope of Executive Power From its Distribution: from The Volokh Conspiracy
Co-blogger Jonathan Adler, citing an important post by Cass Sun... [Read More]

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Frederick Hamilton

Prof Sunstein,

Thank you for the explanation of unitary executive.

It does seem obvious that there is only one constitutionally approved leader of the executive branch of government. The president. So obvious, that I think it is only the president who must sign legislation before it becomes law (with a few wrinkles like pocket vetoes, congressional overrides, et al). Isn't that right?

The president and congress fighting over each other's powers will be with us Thank God for as long as we remain a sovereign nation under our present constitution.

Don

Thank you for the post. I learned a lot.

I wonder about signing statements. Do you think this is a valid power of either a weak or a strong unitary president?

Brian

A lot have people have been pointing out that the "unitary executive" idea involves relations within the executive branch, and not the relationship between the Executive and Legislative (or Judicial) branches. However, they usually had less professional prestige than Mr. Sunstein, or they have been associated with the Right, and thus it was assumed that the point was merely intended as a defense of President Bush or his judicial nominees.

Thus, Mr. Sustein's post is most welcome.

It would have been even more welcome about a year ago, when a lot of politicians were arguing that that the concept of a unitary executive was really an attempt to curtail Congress' powers. See, e.g., this page produced by the then-minority Democrats on the Senate Judiciary Committee, in opposition to the confirmation of Justice Alito:

FACT CHECK: JUDGE ALITO ON THE THEORY OF THE UNITARY EXECUTIVE
http://democrats.senate.gov/judiciarycommitteesupremecourt/correcting-12.cfm

So Mr. Sustein's wild-eyed alarmist may, perhaps, be qualified for a seat on the Senate Judiciary Committee.

DJ

Ah, but what's a strongly unitary executive enthusiast to do where the Constitution expressly grants the President unconditional authority--say, as Commander in Chief?

NameWithheld

It's pretty hard not to believe in a unitary executive in our system. It's harder, given our system, not to believe that this means unchecked power.

I'd be a lot more comfortable, for instance, if those (apparently) loudly decrying the unitary executive refrained from blaming Bush for, say, the response to Hurricane Katrina. Either he's got the authority and responsibility and can therefore be held accountable (strongish unitary executive) or he doesn't and therefore any bad result is not his fault. Pick one.

OTOH, given the size of the federal government, while I fail to see how one person can be responsible for it all, I'd be very uncomfortable unless there was a pretty clear line about who *is* responsible. For instance, the current sub-prime lending problems. Wasn't one of the arguments a few years ago that some, or many, people were being unfairly held to too strict standards when it came to buying a home? I seem to remember that one. So, now, who is to blame for the rather inevitable results of loosening the standards?

Having said that I, and some friends and family members, are among those who were helped no end by looser standards. They apparently worked for some 80% of borrowers. Who gets the credit/blame.

Reminds me of John F Kennedy (although he may have stolen it) when he said "success has a thousand fathers, failure is an orphan." If the President must be the 'father' of the failures, so must he/she get credit for the successes. Either that or we need to know, in advance, who *is* the 'father'.

Anthony

The big hole in the unitary executive theory is that Congress has the sole power to appropriate funds. So if Congress dislikes a particular group within the executive, it can refuse to appropriate money to pay for that group. However, absent a denial of funds, Congress does not have much real power over the internal operations of the executive.

So much baloney

This is pretty much a bunch of nonsense. At this point in time, “unitary executive” means essentially whatever its apostle, John Yoo, says it means, which I believe includes an inherent power of the President, in his role as Commander in Chief, to order up torture or pretty much anything else that he believes, or claims to believe, is in the service of national defense without regard to anything that Congress may have to say about it.
Trying to redeem the doctrine from Yoo with esoterica about unitary and plural and strong and weak is meaningless in the context of our political life.

The real problem with the doctrine of unitary executive is that it incorporates claims about inherent presidential power that do not find any support in the Constitution. The president is Commander in Chief of the armed forces, has power of appointment of officers and judges and to make treaties, in each case with the consent of the Senate, the power of pardon, and otherwise has no authority other than “to take care that the laws be faithfully executed.”

All legislative power, that is all power to make the laws that the president must take care faithfully to execute, is vested in the Congress. And that power is plenary subject to only two constraints – it is limited to the spheres in which power has been delegated by the Constitution, the enumerated powers, and it is limited by the rights of individuals protected in the Bill of Rights. There is no inherent power in the president to do anything at all and nothing whatsoever to indicate that the Congress may not legislate comprehensively and in detail concerning the operations of the federal government itself and its officers and employees. If Congress determines that agency officers are to do a certain thing, then the duty of the president is to see that they do, not to make his own policies in contravention of that prescribed by the Congress. In a democracy such as ours, the branches of government are not really co-equal, although the term is used copiously, the legislature is the supreme branch of government. So long as it does not exceed the limits set out in the Constitution, it can do what it wants.

The president is not even explicitly accorded any power to dismiss officers. Hence, there is no reason to believe that Congress may not protect them from dismissal. It is explicit in the Constitution that Congress may vest the power of appointment of lesser offices in the president alone, the courts, or the heads of departments. So much for even a shred of the “unitary executive” with inherent power to control anything at all except subject to the laws established by Congress.

Bottom line, this argument is a load of crap trying to sound scholarly.

Deamon

Baloney This:
If the President cannot dismiss subordinates who either cannot or will not carry out the law, he has the executive power in name only. Congress then controls the instrumentality of the Executive.

If you wish to dispose of the executive branch entirely that is your prerogative, but it has not foundation in the Constitutuion.

tanarg

Anthony,

You are mistaken in that you have forgotten that it is Congress's will that regulations be promulgated by the executive branch in order to carry out specifics of a law passed by it. So, far from being a mere water boy, the executive has considerable congressionally mandated input on the implementation of the law.

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