University of Pennsylvania Journal of Constitutional Law
The Unitary Executive offers a powerful case for the historical pedigree of the unitary executive theory. Offering an account of presidential practice stemming from George Washington to George W. Bush, the book seeks to ground unitary executive theory with exhaustive historical evidence. Although the authors do not purport to present a history of the presidency, they do provide important and compelling evidence of a broad and longstanding understanding by Presidents and Congresses in favor of an exclusive presidential power to remove government officials. In doing so, the authors’ primary goal is to bolster unitary executive theory with historical evidence. But they have a second, more subtle goal: to disassociate unitary executive theory from the theories of presidential powers invoked by the administration of George W. Bush. “Despite the current administration’s attempt to tie claims of emergency presidential powers to the theory of the unitary executive, the inherent executive power that it seeks to assert has little to do with the framers’ decision to vest the executive power in a single person . . . .”
In this essay, I suggest that this attempt to save unitary executive power theory from the Bush Administration is not likely to succeed. While I agree with the authors that there is no necessary correlation between unitary executive power theory and inherent executive power, I think the authors are overlooking a characteristic of unitary theory that is likely to maintain its association with theories of strong and unchecked executive power. In my view, the most troubling and potentially dangerous claims by the executive occur not when Presidents make claims of inherent executive power. Rather, the most difficult claims arise from cases where the President is claiming exclusive presidential power; that is to say, cases where the President argues that he has a constitutional power that cannot be trumped or limited by congressional action. The best example of the controversial nature of these claims is the use, by both the George W. Bush and Obama Administrations, of signing statements claiming the right to disregard the effect of congressional statutes. I will argue that unitary executive theory, even that version of unitary executive theory expounded by the authors, is a species of this exclusive executive power. For this reason, unitary theory will almost certainly be subject to the same kind of criticism and structural mistrust as other claims of exclusive executive power.
In this brief essay, I will first define what I mean by the terms “exclusive” and “inherent” in the context of executive powers. Then, I will illustrate the controversial nature of exclusive executive power by reviewing the recent controversy over the use of signing statements in both the George W. Bush and Obama Administrations. Finally, I will argue that unitary executive theory, as an exclusive presidential power, is likely to remain a foundation for supporters of executive power and, likewise, remain a target of critics of overexpansive executive power.
Julian G. Ku,
Unitary Executive Theory and Exclusive Presidential Powers, 12 U. Pa. J. Const. L. 615
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/91