Administrative law of the United States |
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In American law, unitary executive theory is "an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House."[1] The concept often comes up in jurisprudential disagreements about the president's ability to remove employees within the executive branch; transparency and access to information; discretion over the implementation of new laws; and the ability to influence agencies' rule-making.[2] There is disagreement about the doctrine's strength and scope, with more expansive versions of the theory becoming the focus of modern political debate. These expansive versions are controversial for both constitutional and practical reasons.[3][4][5] Since the Reagan administration, the Supreme Court has embraced a stronger unitary executive, which has been championed primarily by its conservative justices, the Federalist Society, and the Heritage Foundation.[6][7][8][9]
The theory is largely based on Section 1 of Article Two of the United States Constitution,[10] which "vests" "the executive Power" of the United States in the president.[11][12] Critics debate over how much power the vesting clause gives a president[13][14] and point to the other clauses in the Constitution that provide checks and balances on executive power. For instance, some argue that the Commander in Chief Clause would be rendered effectively redundant if the founders intended the wording to be interpreted as a unitary executive.[15] Others argue that even the King of Great Britain at the time of the founding did not have the unitary control that some proponents argue he had when justifying an expansion of presidential power.[16] In recent years, the Supreme Court has held that, regarding the powers granted by the vesting clause, "the entire 'executive Power' belongs to the President alone."[17][18]
Since its inception, the President of the United States has exercised significant authority over the executive branch, with some exceptions, including independent agencies such as the Federal Reserve, and independent personnel such as special counsels.[19][verification needed] These limits on unitary executive power can be created by the legislative branch via Congress passing legislation, or by the judicial branch via Supreme Court decisions. Since the founding of the country, positions independent of the executive have included Comptroller, Postmaster General and the Sinking Fund Commission.[19] The Reagan administration, including the justices it appointed to the Supreme Court, was the first presidential administration to cite unitary executive theory.[20] It then entered public discourse with the George W. Bush administration and found a strong advocate in Donald Trump.[21] Presidents of both parties tend to view the idea that they should have more power more favorably when in office.[21]
Beyond disputing its constitutionality,[22][23][24][15] common criticisms include the ideas that the theory could lead to poor outcomes, including more corruption and less qualified employees.[25][26][27] Some critics point to countries where similar changes to a more unitary executive have resulted in democratic backsliding,[28][29][30][31] or to the vast majority of democracies (including U.S. states and local governments) that give their executive leader less power.[32][30][33][34]
Lawyers in the Reagan-era Justice Department developed the so-called unitary executive theory, an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House. Under stronger versions of this vision, Congress cannot fracture the president's control of federal executive power, such as by vesting the power to make certain decisions in an agency head even if the president orders the agency to make a different decision, or by limiting a president's ability to enforce his desires by removing any executive branch official – including the heads of 'independent' agencies – at will.
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was invoked but never defined (see the help page).Constitutionally, the unitary executive theory is not some long-established doctrine that is widely accepted by courts and other political actors. Far from it, the constitutional status of the theory is rather controversial.
When the Supreme Court dramatically expanded presidential power yesterday, it continued a trend that's been going in one direction for a long time.
Unitarians fixate on the wording of Article II's 'Vesting' clause (versus the wording in Articles I and III), arguing that the president alone has all the executive power, which means any power that is executive in nature, even if it is not directly listed in the Constitution, belongs to the president
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was invoked but never defined (see the help page).Article II speaks directly only about elected officials, chiefly the President and his powers; it describes those powers in the most summary of terms. He is vested generally with 'the executive Power,' but what that is in the domestic context does not readily appear. Putting aside foreign relations and military authority-a very large part of the Presidency, but not the focus of this essay 89-he has the following powers and/or responsibilities.
This Article offers a close textual reading of the word 'vesting' and an examination of its eighteenth-century usage and context, with the first survey of available dictionaries (from 1637 to 1846), colonial charters and state constitutions, the Constitutional Convention, and Ratification debates. Dictionaries defined 'vest' in terms of basic landed property rights, without reference to exclusivity or indefeasibility, and rarely with any reference to offices or powers. Other legal documents and digital collections of the Founders' papers indicate a range of usage, from 'fully vested' to 'simply vested' to 'partly vested,' so that the word 'vesting' by itself would signify less completeness. Meanwhile, words used in the Constitution or by the Framers to convey exclusivity or indefeasibility (for example, 'all,' 'exclusive,' 'sole,' 'alone,' or 'indefeasible') are missing from the Executive Vesting Clause. The ordinary meaning of 'vesting' was most likely a simple grant of powers without signifying the impermissibility of legislative conditions such as good-cause requirements for removals, undermining the unitary theory's originalist basis. On the other hand, the 'all' in the Legislative Vesting Clause may be more legally meaningful for nondelegation.
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was invoked but never defined (see the help page).:6
was invoked but never defined (see the help page).The Supreme Court in 1935 and 1988 upheld the power of Congress to shield some executive branch officials from being fired without cause. But after justices appointed by Republicans since Reagan took control, it has started to erode those precedents.
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was invoked but never defined (see the help page).:42
was invoked but never defined (see the help page).:14
was invoked but never defined (see the help page).Manheim Ides
was invoked but never defined (see the help page).UPDATE: I perhaps should have mentioned the oft-made argument that maintaining a unitary executive—even when it comes to powers beyond the scope of the original meaning of the Constitution—is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Moreover, it becomes difficult to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability.
'That's what happens in authoritarian states – there is a semblance of a legal system, but it becomes useless,' she said. 'If that happens here it would be extremely troubling. We're not there yet. But I do think a second term could cause significant damage that may or may not be permanent.'
One reason for the professionalisation of the bureaucracy in the 19th century was to provide the ship of state with enough ballast to keep sailing from one administration to the next ... The vain and tyrannical whims of an emperor-president would emerge from the rubble.
Turning devoted public servants into mere servants of their master and by privileging presidential desires over institutional expertise and independence, the theory risks turning the chief executive into an absolute monarch. Moreover, by enlarging the already considerable powers of the presidency, it threatens to upset the country's delicate inter-branch balance by relegating Congress and the judiciary to inferior status ... Trump showed us what happens when you support the use of such power with a person who appears to care little about the institution, the Constitution, or America's democracy. ... Thus the United States could see the unitary executive theory employed to significantly erode basic democratic principles.
The unitary executive theory provides a veneer of legal authority for an authoritarian-inclined president to engage in a range of anti-democratic behaviors. By the time George W. Bush had shown what the unitary executive could justify – torturing prisoners, surveilling ordinary citizens, ignoring congressional statutes – constitutional scholars were already pointing to presidents as the chief threat to American democracy. With the rise of right-wing populism and the election of Trump in 2016, this threat was magnified by the accompanying transformation of the Republican Party itself, with its elites in Washington and around the country abetting Trump's authoritarian behavior in office ... The Republican Party is now an anti-democracy party, and its future presidents – empowered by the unitary executive theory – threaten the fundamentals of the U.S. democratic system ... Democrats have been complicit, but Republicans have pushed the trajectory beyond democratic bounds.
But implementing what critics call 'unitary executive theory'—i.e., putting all aspects of the federal government under the control of the president—is a prescription for authoritarianism and abuse.
But the American system gets sticky when you contemplate vesting the executive power in one person who cannot be easily removed when that person is as mercurial and peculiar as Trump. In such situations, the structure can start to seem downright reckless. In concentrating power so that this person directs the federal government to do things—and in making this person exceptionally difficult to depose for a protracted period of time—one has to have a certain amount of confidence in that person's intentions and abilities.
Indeed, partial unbundling of executive authority is the norm rather than an exception in virtually all levels of non-national government units in the United States, of which there are more than 80,000. Authority that the governor or mayor would otherwise exercise is frequently given to a specific state or local officer. Often these officers are directly elected by the public. Other times they are elected by the legislature; other times still, they are appointed by another state official. These arrangements are only approximations of the unbundled executive ideal because they there is residual responsibility or authority for the policy in the general purpose executive ... The average number of elected executive offices per state was 6.7 in 2002 ...
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