What the "Unitary Executive" Debate Is and Is Not About

Not long ago, a wild-eyed man came up to me in a large city, pushing a piece of paper into my hand and saying, in an alarmingly loud voice, "DO YOU KNOW WHERE THE IDEA OF THE UNITARY EXECUTIVE COMES FROM?" I couldn't help but laugh, because I do know (more or less), and the answer isn't quite what he said (which was Hitler, or it might have been Stalin). Because the idea of the unitary executive is so much in the news, and because it is creating a lot of confusion, it might be useful to set out some of the basics here.

Those who believe in a unitary executive need not think that the president can defy the will of Congress, or torture people, or make war on his own. The principle of a "unitary" executive involves only one thing: The president's hierarchical control over implementation ("execution") of federal law. Thus, for example, those who believe in a unitary executive tend to be drawn to the following sorts of positions:

1) as a matter of constitutional law, the president can fire all U.S. Attorneys at will;
2) as a matter of constitutional law, the president can fire the heads of executive agencies at will;
3) as a matter of constitutional law, the president has considerable control over policymaking by executive agencies (e.g., the EPA, the Department of Commerce, the Department of Labor), at least insofar as those agencies are acting within the limits set by Congress;
4) as a matter of constitutional law, the so-called independent regulatory commissions, such as the National Labor Relations Board and the Federal Trade Commission, are troublesome insofar as their heads are not at-will employees of the president;
5) any "independent counsel" statute is constitutionally troublesome insofar as the independent counsel is not an at-will employee of the president;
6) executive privilege can probably be extended, by the president, to all those who exercise discretion and are involved in law implementation within the executive branch.

In American constitutional law, the idea of a unitary executive is nothing new. It goes all the way back to the founding. The Constitution does not create a "plural" executive; Article II, section 1 vests executive power in one person, the president of the United States. The decision to create a unitary rather than plural executive was debated and decided. So in a way, everyone agrees that ours is a unitary executive. (Franklin Delano Roosevelt insisted on that point, and was especially dismayed when the Supreme Court ruled otherwise in its decision holding that the heads of the FTC are not the president's at-will employees.)

But there are real disputes, historical and otherwise, about what unitariness specifically involves. The general disagreement is between those who believe that ours is a "strongly unitary" executive, in the sense signalled by the six propositions listed above, and those who believe that the executive is only "weakly unitary," in the sense that Congress retains power (for example) to create independent agencies and independent prosecutors.

Gerhard Casper, for example, has vigorously argued that the Constitution gives Congress broad authority to structure the executive branch, by insulating law implementation from complete presidential control. Others, including Steve Calabresi, have vigorously disagreed, contending that the document and its history clearly forbid Congress from intruding on the president's authority to run the executive branch. (I am simplifying some complexities in their positions here.)

There are two dimensions to the debate over the nature of the unitary executive. The first is historical. What was the original understanding? The second is about interpretation across a span of many years. When the national government is so much larger than it originally was, is the claim for a strongly unitary executive more powerful, or less so, supposing that we seek to maintain fidelity to the document's original goals? Abner Greene has argued that the growth of the national government has made the argument for a strongly unitary executive branch less powerful; Larry Lessig and I have argued that the argument has become more powerful.

Under President Reagan, the executive branch argued, with real vigor, on behalf of a strongly unitary executive. The Supreme Court has resisted those arguments. But many issues are open, and in approaching the open questions recent presidents have tended to continue to argue that the executive is strongly unitary.

The most important point is that the claim for the unitary executive is not a general claim about the President's power to act on his own or to contradict the will of Congress. You can believe in a strongly unitary executive branch while also believing that the President cannot make war, or torture people, or engage in foreign surveillance without congressional authorization. You can also believe that the president can do a lot on his own, or a lot in violation of Congress' will, while also accepting the view that Congress can create independent agencies and independent prosecutors. In short, the debate over the unitary executive is an important but narrow one, and it is a small, distinct subpart of the general debate over presidential power.

Comments

[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.