Unitary Executive

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Ilya Somin nicely clears up some confusions about what's commonly called the unitary executive. There are two issues: the scope of executive power and its distribution. The unitary executive view is that the president's authority over the executive (an intra-executive issue) is absolute. I would have thought this to be absolutely clear in the Constitution, but apparently some disagree. A separate issue is about the scope of executive power. How much authority does the executive has with respect to the other branches (an inter-branch issue)? In other words, unitary executive allows the president sovereign control over what happens within the executive branch, but this other view sees the executive power as expansive in a way that many find controversial. The problem is that many people keep calling the latter view by the term "unitary executive".

Somin says:

As Alito explains, one can consistently support a unitary executive with a narrow range of powers (which is roughly my position). One can also consistently support a unitary executive with very broad, almost unlimited powers (John Yoo's view, and also that of the Bush Administration). You could - also consistently - endorse a nonunitary executive with broad powers. The latter was the position of liberal Democrats during the New Deal and for many years afterwards, when they endorsed both broad executive power and the creation of numerous executive agencies outside presidential control.

Is there an example of someone who both denies the unitary executive and thinks the executive has a limited role? Given that both positions serve to limit the president, perhaps hardly anyone seeks to try both ways at doing so, but I'm curious whether someone has tried.

2 Comments

This could be a trickier distinction to make than it seems.

What does it mean for the president to have "absolute" authority over the executive branch? Does it mean Congress cannot regulate any of the constitutional activities of the executive? That could mean Congress cannot go against the president's will to (e.g.) prohibit soldiers from using torture, prohibit postal inspectors from shooting suspects on sight, or prohibit West Wing secretaries from taking bribes.

It seems to me that the Bush administration has taken such a view at times. Here's a relatively innocuous signing statement:

Section 513 of the Act purports to direct the conduct of security and suitability investigations. To the extent that section 513 relates to access to classified national security information, the executive branch shall construe this provision in a manner consistent with the President's exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief, to classify and control access to national security information and to determine whether an individual is suitable to occupy a position in the executive branch with access to such information.

Unless I am mistaken, that amounts to a denial of Congress' right to regulate access to classified information within the executive branch. It's not just a statement about the organizational structure of the executive.

So I guess I'm mostly agreeing with you and Somin, but noting that the Bush administration itself seems to be erasing Somin's distinction between the two issues.

Is there an example of someone who both denies the unitary executive and thinks the executive has a limited role?

How about the independent counsel statute? That seems to presuppose both attitudes.

That's Yoo's trick, I think, and it's why he says this stuff just follows from the unitary executive, when in reality he's building more into what the executive powers contain than his opponents would want to grant (at least in their view).

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