Wikipedia

Unitary executive theory

This is an old revision of this page, as edited by TheronJ (talk | contribs) at 14:36, 29 March 2006 (Moved into chronological order, and added more detail on Watergate). The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

In American political and legal discourse, the unitary executive theory is a theory of Constitutional interpretation that addresses aspects of the separation of powers. The theory argues that the power of Congress to divest the President of control of the executive branch is limited.

The theory

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language along with the Take Care Clause ("[The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."[1]

The theory argues that the power of Congress to divest the President of control of the executive branch is limited.

Proponents of the theory argue that the President possesses all of the executive power and therefore he can control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power, not controlled by the President.[2]

The judicial branch implications are that no part of the executive branch can sue another part because "the executive cannot sue himself." If the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.

The theory has been associated with conservative legal thought and members of the Federalist Society, and originally came to prominence in regard to the independent counsel law (see Morrison v. Olson).

U.S. courts have not explicitly ruled on the theory, though there are two published opinions that relate to the claims of the theory. Chief Justice Taft, writing for the majority in Myers v. United States derived an unlimited presidential removal power over executive department subordinates, and Justice Scalia in his solitary dissent in Morrison v. Olson argued for an unlimited presidential removal power of independent counsels.

The Justice Department has used the unitary exectutive theory to decide that the Environmental Protection Agency may not bring a legal suit against the U.S. military, since there would be only one party in the suit: the president.

Several professors of constitutional and international law object that the Constitution grants Congress the exclusive power to "make all Laws which shall be necessary and proper for carrying into Execution... all... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"; that the Constitution grants Congress the exclusive power "To make Rules for the Government and Regulation of the land and naval Forces"; that the Constitution specifically obligates the President to "take Care that the Laws be faithfully executed", where the "Laws" are defined as that which the Congress has the exclusive power to pass.[3] [4] They have also indicated that in every single Supreme Court case involving a statutory restriction of the power of the President, the statute has been upheld, including several in which the statute was only held to imply the limitation on Presidential power, let alone explicitly limit it; [5] that the phrase "unitary executive" that was discussed in the Constitutional Convention referred merely to having a single individual fill the office of President, as proposed in the Virginia Plan, rather than have several executives or an executive council, as proposed in the New Jersey Plan and as promoted by Elbridge Gerry, Edmund Randolph, and George Mason [6] [7]; and that the Constitutional Convention debates show that the Founders' primary concern behind whether to have a single executive or an executive council was to choose the one that would ensure that the executive would be relatively weaker and more easily restrained by the legislature; that those who argued for a unitary executive advanced the argument because they considered that the best way to limit the executive’s power and keep it subordinate to the legislature, in opposition to arguments that a plural executive would support the executive’s independence; and the term "unitary executive" was thereby bound up with the intention of keeping executive power checked and restrained. [8]

Executive powers of U.S. administrations

The Jackson administration

In 1831 Andrew Jackson refused to recognize a decision by the United States Supreme Court that exempted the Cherokee nation from Georgia state law and recognized that they had a right to self-government. He is generally recognized as having exceeded his proper authority in doing so.

The Lincoln administration

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads" (those in the Union who supported the Confederate cause). However, he also wrote to Congress soon afterward asking them to retroactively pass a law authorizing his actions, explicitly recognizing that only they could do so.

Lambdin Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan that the suspension had been unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed.

Nevertheless, even when habeas corpus is suspended, both common law and civil law theoretically allow the remediess of replevin and trover, wherein the imprisoned individual could claim loss of a possession (liberty) and demand its restoration. However, this is a theoretical principle and has not been tested in any court of or within the United States.

The Theodore Roosevelt administration

Roosevelt believed that extended presidential powers allowed him to best serve his country with quick, vigorous decisions, although he also explicitly recognized his obligation as president to submit to the legislature. He wrote in his Autobiography:

I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition . . . (198).

The Franklin D. Roosevelt administration

Later President Franklin D. Roosevelt ordered the internment of 120,000 individuals of Japanese descent. However, his administration submitted to the authority of the judicial process in reviewing this action. The action was eventually allowed to stand because it was approved by the Supreme Court, although the Court and legal scholars since then have often criticized the correctness of that decision.

The Truman administration

President Harry Truman sought to take over the steel industry trying to prevent a strike during the Korean War. Yet in the Youngstown Sheet & Tube Co. v. Sawyer case the court held that his seizure of the American steel mills was unconstitutional.

The decision has had a broad impact, since it represented a check on the most audacious claims of executive power at the time. It also represented the Court's assertion of its own role in intervening in political questions, as the Court later did in Baker v. Carr and Powell v. McCormack. The Court also applied the Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action in invalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, while citing it more generally in support of its decision to permit litigation against the President to proceed in Clinton v. Jones.

The Nixon administration

In 1971, Nixon tried to enjoin the publication of the Pentagon Papers. However, it is not clear if this is directly relevant to the Unitary Executive theory, because Nixon applied for an injunction in the courts and accepted the Supreme Court's decision permitting publication of the papers.

However, in response to the leak of the Pentagon Papers, Nixon then formed a special White House unit known as "[[White_House_plumbers|"the Plumbers". Officers of the administration of Richard M. Nixon, including at least Attorney General John N. Mitchell and members of Nixon's campaign staff approved unlawful break-ins committed by the Plumbers. (See generallyWatergate_scandal). President Nixon then used his executive powers to impede the resulting investigation. The Church Committee investigated other executive conduct, including wiretaps against those who opposed the Vietnam War. Ultimately, Nixon avoided impeachment proceedings by stepping down. The rationale he advanced regarding these actions was:

"It is quite obvious that there are certain inherently governmental actions which if undertaken by the sovereign...are lawful but which if undertaken by private persons are not.... But it is naive to attempt to characterize activities a President might authorize as 'legal' or 'illegal' without reference to the circumstances under which he concludes that the activity is necessary."

In response to Operation Shamrock, Operation Minaret, and the transgressions by the Nixon administration, which all involved abuses by the NSA, the 1978 Foreign Intelligence Surveillance Act was adopted.[9]

The George W. Bush administration

The Bush administration has been viewed to interpret the theory more extremely than the previous ones. As for what specific constitutional limitations on the judicial power President Bush may have in mind, the rhetoric used by the President and his supporters is widely regarded as corresponding to legal positions promulgated by John Yoo, particularly as recorded in several of his legal memoranda while working at the Department of Justice's Office of Legal Counsel under Bush. Yoo's positions include that the use of military force is, like presidential vetoes and pardons, an unreviewable matter. Yoo's opinions are widely seen by legal scholars as controversial and contrary to most scholars' understanding of the Constitution.

President George W. Bush has applied the theory of the "unitary executive" in many of his decisions, most significantly in relation to its substantive element. He has often issued signing statements, detailing how the executive branch will construe legislation. For example, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:

The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.[10]

In effect, Bush stated that when it comes to several areas of foreign policy, the provisions discussed in his signing statement are merely advisory. It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases. Skeptics point out that he in effect uses them as line item veto although the Supreme Court already held the line item veto as unconstitutional in Clinton v. City of New York.[11]

Another signing statement that has garnered controversy is the signing of the McCain Detainee Amendment, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody. President Bush wrote in part:

The executive branch shall 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.[12]

Some analysts contend the President has, with that statement, reserved the right to waive the act.[13]

The NSA warrantless domestic surveillance program is another example of the Bush administration's application of its interpretation of executive power, which has led to much criticism.[14] For example former Vice President Al Gore stated:

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."
An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."[15]

Under the Bush administration, the United States Department of Justice has ruled that the Environmental Protection Agency may assess administrative penalties against the Department of Justice pursuant to Congressional authorization, notwithstanding the unitary executive theory.[16]

Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers can not be restrained by any law, national or international.[17] Opponents of the theory point out that the Constitution grants no exceptional war powers or authority to the President, and point to the Supreme Court decisions against previous Presidental claims of war authority in Ex Parte Milligan and Youngstown Sheet & Tube Co. v. Sawyer to support their view. Others note that the view Yoo advocates, closely resembles the Führerprinzip,[18] and is not unlike the one seen in police states.[19] Supporters reply that it is exactly the same war power that Abraham Lincoln used to issue the Emancipation Proclamation in 1863, in the face of Copperheads who called him a dictator and sought his assassination. Sceptics are not convinced, since the Supreme Court in Ex Parte Milligan had already determined that the suspension of Habeas corpus was unconstitutional.

See also

Notes

  1. ^ Calabresi & Rhodes (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review. 105: 1565.
  2. ^ Calabresi & Rhodes (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review. 105: 1566.
  3. ^ U.S. Constitution
  4. ^ Letter to Congress regarding FISA and NSA, Bradley, et. al., January 9, 2006; see cases listed therein.
  5. ^ Letter to Congress regarding FISA and NSA, Bradley, et. al., February 2, 2006; p. 5 (e.g. “The argument that conduct undertaken by the Commander in Chief that has some relevance to “engaging the enemy” is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such.” (emphasis in original) – 14 legal scholars including the current dean of Yale Law School and the former deans of Stanford and the University of Chicago law schools.)
  6. ^ Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates (Signet Classic, 1986), p. 67 (“MR. [James] WILSON entered into a contrast of the principal points of the two plans [i.e. the Virginia Plan and the New Jersey Plan]… These were… A single Executive Magistrate is at the head of the one – a plurality is held out in the other.”)
  7. ^ Robert Rutland, ed. The Papers of George Mason (3 volumes, Chapel Hill, 1970), vol. 3, pp. 896-898; Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates, pp. 47-49 (“If strong and extensive Powers are vested in the Executive, and that Executive consists only of one Person, the Government will of course degenerate, (for I will call it degeneracy) into a Monarchy – A Government so contrary to the Genius of the People, that they will reject even the Appearance of it. … If the Executive is vested in three Persons… Will not such a Model of Appointment be the most effectual means of preventing Cabals and Intrigues… Will it not be the most effectual Means of checking and counteracting the aspiring Views of dangerous and ambitious Men, and consequently the best Security for the Stability and Duration of our Government upon the invaluable Principles of Liberty? These Sir, are some of my Motives for preferring an Executive consisting of three Persons rather than of one.” George Mason, Constitutional Convention, June 4, 1787)
  8. ^ Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates, pp. 42-43 (“MR. [John] RUTLEDGE… said he was for vesting the Executive power in a single person, though he was not for giving him the power of war and peace. A single man would feel the greatest responsibility and administer the public affairs best. MR. [Roger] SHERMAN said he considered the executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the depository of the supreme will of the Society. As they were the best judges of the business which ought to be done by the Executive department, and consequently of the number necessary from time to time for doing it, he wished the number might not be fixed, but that the Legislature should be at liberty to appoint one or more as experience might dictate. MR. [James] WILSON… The only powers he conceived strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature. MR. [Elbridge] GERRY favored the policy of annexing a Council to the Executive in order to give weight and inspire confidence. MR. [Edmund] RANDOLPH strenuously opposed a unity in the Executive magistracy. He regarded it as the fetus of monarchy. … MR. WILSON said that unity in the Executive instead of being the fetus of monarchy would be the best safeguard against tyranny.” Constitutional Convention, June 1, 1787; see also comments by George Mason, previous footnote.)
  9. ^ Nixon administration
  10. ^ Foreign Relations Authorization Act, Fiscal Year 2003
  11. ^ Signing statements
  12. ^ President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006" White House, December 30, 2005
  13. ^ McCain Detainee Amendment
  14. ^ The President's End Run, Washington Post, January 23, 2006
  15. ^ US Constitution in Grave Danger By Albert Gore Jr., January 16, 2006
  16. ^ EPA ASSESSMENT OF PENALTIES AGAINST FEDERAL AGENCIES FOR VIOLATION OF THE UNDERGROUND STORAGE TANK REQUIREMENTS OF THE RESOURCE CONSERVATION AND RECOVERY ACT (MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF DEFENSE AND THE GENERAL COUNSEL ENVIRONMENTAL PROTECTION AGENCY), June 14, 2000
  17. ^ Suggested interpretation
  18. ^ Führerprinzip
  19. ^ The Would-Be Dictator: How We Got to This Awful Place By Bernard Weiner, The Crisis Papers, December 25, 2005

References

Supporters

Critiques

Misc

Retrieved from "https://en.wikipedia.org/w/index.php?title=Unitary_executive_theory&oldid=46013841"