Unitary executive theory

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The unitary executive theory is a theory of United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch. The doctrine is rooted in Article Two of the United States Constitution, which vests "the executive power" of the United States in the President. Although that general principle is widely accepted, there is disagreement about the strength and scope of the doctrine.[1] It can be said that some favor a "strongly unitary" executive, while others favor a "weakly unitary" executive. The former group argue, for example, that Congress's power to interfere with intra-executive decision-making (such as firing executive branch officials) is limited, and that the President can control policy-making by all executive agencies within the limits set for those agencies by Congress. Still others agree that the Constitution requires a unitary executive, but believe this to be harmful, and propose its abolition by constitutional amendment.[2]

Plural executives exist in several states where, in contrast to the federal government, executive officers such as lieutenant governor, attorney general, comptroller, secretary of state, and others, are elected independently of the state's governor. The Executive Branch of the Texan state government is a textbook example of this type of executive structure. However, only the State of North Carolina maintains a plural executive whereby the Chief Executive's actions can be curbed by other elected executive officers, this group is known as the North Carolina Council of State and it wields fair amounts of statutory powers when approving monetary and property transactions by the state government.[3] This type of plural executive, used in Japan, Israel, and Sweden is one in which a collegial body composes the executive branch – however, that collegial body does not comprise multiple members elected in elections, but is rather more akin to the US Cabinet or UK Cabinet in formation and structure.



The general principle that the President controls the entire executive branch was originally rather innocuous, but extreme forms of the theory have developed. Former White House Counsel John Dean explains: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters."[5]

According to law professors Lawrence Lessig and Cass Sunstein, "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version."[1] In either its strong or weak form, the theory would limit the power of Congress to divest the President of control of the executive branch. The "strongly unitary" theory posits stricter limits on Congress than the "weakly unitary" theory.[1] During his confirmation hearing to become an Associate Justice on the United States Supreme Court, Samuel Alito seemed to endorse a weaker version of the unitary executive theory.[6]




Adoption of constitutional provisions[edit]





Meanwhile, Federalists such as James Madison were emphasizing an additional advantage of a unitary executive. In Federalist No. 51, he wrote that an undivided executive would strengthen the ability of the executive to resist encroachments by the legislature: "As the weight of the legislative authority requires that it should be thus divided [into branches], the weakness of the executive may require, on the other hand, that it should be fortified."[12]





Judicial decisions[edit]




Criticism of the strong version of the theory[edit]


David Barron (now a federal judge) and Marty Lederman have also criticized the strong version of the unitary executive theory. They acknowledge that there is a compelling case for a unitary executive within the armed forces.[17] However, they argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and they argue that the Commander in Chief Clause would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the President.[18]



The George W. Bush administration made the Unitary Executive Theory a common feature of signing statements.[23] For example, Bush once wrote in a signing statement that he would, "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."[24] Critics acknowledge that part of the President's duty is to "interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies," but critics accused Bush of overstepping that duty by his perceived willingness to overrule US courts.[25]

In film[edit]

In the 2018 biographical film Vice, directed by Adam McKay, the unitary executive theory is explored in some detail and dramatized. Dick Cheney, the film's subject, his lawyer David Addington, Deputy Assistant US Attorney General in the Office of Legal Counsel John Yoo, and Scalia figure prominently in the theory's development and promotion. They brought it to the foreground of modern discussions on the topic of executive power beginning in 2001, continuing throughout the Bush administration and beyond. The application of this legal doctrine has implications for the prosecution of the war on terror, the subsequent 2003 invasion of Iraq, the use of enhanced interrogation techniques at sites like Guantanamo Bay and Abu Ghraib, and mass surveillance. These are highlighted in the narrative.

See also[edit]


  1. ^ a b c d Lessig, Lawrence & Sunstein, Cass (1994). "The President and the Administration" (PDF). Columbia Law Review. 94. doi:10.2307/1123119. JSTOR 1123119.
  2. ^ a b Berry, Christopher & Gersen, Jacob (2008). "The Unbundled Executive". University of Chicago Law Review. Archived from the original on August 7, 2011. We certainly do not claim that the most sensible or even any plausible interpretation of the US Constitution establishes a plural unbundled executive; but perhaps it should Cite journal requires |journal= (help)
  3. ^ "North Carolina State Government - The Executive Branch - Council of State". www.carolana.com. Retrieved April 30, 2021.
  4. ^ a b Calabresi, Steven & Rhodes, Kevin (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review. 105 (6): 1165. doi:10.2307/1341727. JSTOR 1341727.
  5. ^ Dean, John (2007). Broken Government. Viking. p. 102. ISBN 9780670018208. unitary executive.
  6. ^ Liptak, Adam (2006). "Few Glimmers of How Conservative Judge Alito Is". The New York Times. p. A1. Retrieved November 2, 2017.
  7. ^ Latham, Joshua (2000). "The Military Munitions Rule and Environmental Regulation of Munitions". Boston College Environmental Affairs Law Review. 27: 467.
  9. ^ "Records of the Federal Convention, Article 2, Section 1, Clause 1". The Founder's Constitution. 1787.
  14. ^ Myers v. United States, 272 U.S. 52 (1926).
  15. ^ Calabresi, Steven & Lawson, Gary (2007). "The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia" (PDF). Columbia Law Review. 107: 1002–1047. Archived from the original (PDF) on March 6, 2009.
  17. ^ Barron, David & Lederman, Martin (2008). "The Commander in Chief at the Lowest Ebb: Framing The Problem, Doctrine, And Original Understanding". Harvard Law Review. 121: 689. Archived from the original on January 25, 2009. we think the text, as reinforced by historical practice, makes a strong case for at least some form of a 'unitary executive' within the armed forces, particularly as to traditional functions during armed conflicts.
  18. ^ Barron, David & Lederman, Martin (2008). "The Commander in Chief at the Lowest Ebb: A Constitutional History". Harvard Law Review. 121: 941. Archived from the original on January 24, 2009. there are those who would argue that the 'unitary executive' must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence.
  23. ^ Johnsen, Dawn (April 2008). "What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses" (PDF). Boston University Law Review. 88: 395. On 363 occasions, President Bush objected to provisions that he found might conflict with the president's constitutional authority 'to supervise the unitary executive branch.'

Further reading[edit]