Originally Published: 4/6/2006
UNITARY EXECUTIVE THEORY
By The Issue Wonk
Almost since its inception, there has been a debate over what the United States Constitution means. The Federalist, a compilation of papers written by Alexander Hamilton, James Madison, and John Jay, attempted to explain the purpose and reason behind the construction of a constitutional govern-ment. However, much still remains in controversy, especially in light of a changing world. One of the controversies, a debate of the issue referred to as the “united executive,” has come, once again, to the forefront. Much of what is written about this theory is legal and scholarly. I have attempted to simplify it. For more in-depth information, please read the footnoted articles.
There are 2 very different views of executive power. One view, the “strong president” view, essentially holds that presidents may do anything not specifically prohibited by the Constitution. The other, the “weak president” view, holds that presidents may only exercise powers specifically granted by the Constitution or delegated to the president by Congress.1
The Unitary Executive Theory is a part of the “strong president” view. Wikipedia states that this theory “involves 2 facets: a procedural view of how the executive branch should operate, and a substantive view of the scope of executive power.”2 It goes on to discuss these views.
Procedural View: Wikipedia states that the “defining characteristic of the unitary executive concept is the procedural aspect.” Since the executive power is vested in the President, the President has the power to “appoint, direct and remove executive officers and to interpret the law as it applies to the actions of the executive branch in the absence of judicial determination." Therefore, all executive power exercised in the executive branch is the same as if the President were exercising it. The executive branch is united.
Substantive View: This view is the one that is currently being scrutinized. According to Wikipedia, “Most of those who support the [unitary executive] theory also support a latitudinarian reading of executive range of action, i.e., an empowered President, with a Congress and Judiciary that give great deference to the President.” In its extreme form, this philosophy states that absolute deference must be given to the executive branch by Congress and the Judiciary. Thus, the Unitary Executive Theory has also been called the theory of the imperial presidency.
Under the Constitution, the president is charged to “take care that the laws be faithfully executed.” (Article II, Section 1) The Constitution also sets out that Congress has the power to make the laws, (Article I, Section 8) and the Judiciary interprets the laws (Article III, Section 2). Traditionally, the Supreme Court has been viewed as the final word on what is and what is not constitutional. In fact, early in our history this power was settled. In Marbury v. Madison (1803), Chief Justice John Marshall, in writing the majority opinion, “gave up the power [of the Supreme Court] to issue [writs of mandamus], but affirmed their power of judicial review, saying that if a law written by the legislature conflicts with the Constitution, the law is ‘null and void.’”3
However, advocates of the Unitary Executive Theory claim that the Judicial branch does not, and never has had, sole juris-diction over interpretation of the Constitution and laws. While no one questions that the Judicial branch has the duty to determine constitutionality, the argument is that it is not exclusively the duty of the Judiciary. For example, when a President vetos a bill, he is, in effect, interpreting the Constitution. According to Yoo, Calabresi, and Colangelo,4 Unitary Executive Theory is based on a concept called “departmentalism.” “This approach holds that all three branches of the federal government have the power and duty to interpret the Constitution and that the meaning of the Constitution is determined through the dynamic interaction of all three branches.” [Emphasis added.]
Kelley5 states that the Unitary Executive Theory draws its support largely from two sources within the Constitution: the “Oath” (Article II, Section 1) and the “Take Care” (Article II, Section 3) clauses. The “Oath” portion, unitarians believe, shields the president from enforcing things he determines to be unconstitutional because it states that the president must swear to “faithfully execute the Office of the President and preserve, protect, and defend the Constitution of the United States.” Unitarians interpret this to mean that the Department of Justice, along with other White House Officials, are required to insure that “none of the president’s Article II powers are infringed upon or that the president is not enforcing or defending sections of law deemed to be unconstitutional.” 5 The “Take Care” clause requires the president to “take care” that the laws are faithfully executed. Unitarians hold that this implies that all members of the executive branch must be overseen by the president. Thus, the departments and agencies within the executive branch are not separate, they are “united” – a unitary executive.
The Current Controversies
The Unitary Executive Theory holds that the president has the “independent” power “to resist encroachments upon the prerogatives of his office and to control the executive branch.”5 While no one seems to be challenging the president’s authority to supervise the executive branch, the controversy appears to lie in how far he might construe his power under this theory. The most commonly cited justification for the current administration’s use of the Unitary Executive Theory is Senate Joint Resolution 23,6 passed by Congress on September 14, 2001, authorizing the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The actions of the president in controversy are rooted in using this Joint Resolution to support his reliance on the Unitary Executive Theory.
War on Terrorism: The current controversy surrounding the war on terrorism relates to the duties of the president as commander in chief. The commander in chief clause of the U.S. Constitution (Article II, Section 2) empowers the president to command the U.S. military branches. However, Article I, Section 8 of the Constitution gives Congress the right to “declare war” and to “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” John C. Yoo, a deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003, (now a law professor at the University of California, Berkeley), first laid out the basis for the war on terror in a September 25, 2001 memorandum.7 He said, “In both the War Powers Resolution8 and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response.” This memorandum, rooted in the Unitary Executive Theory, has been used by the Administration as the justification for the most controversial presidential actions.
Signing Statements: Another area of controversy is over the use of what is known as “signing statements.” This occurs when a president is presented a law passed by Congress. Rather than veto the law and send it back to Congress where the veto may be overridden, he signs the bill into law and then issues a statement. These statements, according to May9, “. . . are typically issued when presidents apply their signature to a bill, but note [their] objections to certain provisions of such laws.” May found that there were only a handful of such statements outlining constitutional objections in the years before World War II, but in recent years some presidents have issued such statements 20% of the time a bill comes to their desks.
Do presidents have the right or power to refuse to enforce laws passed by Congress because they believe all or some part of the law is unconstitutional? Unitarians say “yes.” May points out that the framers of the Constitution rejected the idea of an absolute executive veto by allowing for a legislative override and he argues that this strongly implies that the framers would not have consented to a power to suspend laws the president found offensive without further judicial or legislative recourse.
May argues that a refusal to enforce, or a decision to defy, may be legitimate in very narrow circumstances. Such actions are permissible if (1) defiance is the only way to bring the issue to the judiciary’s attention for proper resolution, (2) the unconstitutionality of the law is clearly supported by the text of the Constitution itself, the intent of the founders, or prior Supreme Court rulings, (3) the White House has exhausted all other possible remedies, and (4) when the executive chooses to defy the law, it takes all possible steps to ensure that judicial review does occur. May states that such conditions have never been met in practice.
Enemy Combatants, Military Tribunals, Interrogation Techniques & Secret Overseas Jails: The selective non-application of the Geneva Conventions to designated “enemy combatants” and the interrogation methods, military tribunals, and secret overseas jails are also viewed as legally dubious. In January, 2002, then-White House Counsel Alberto Gonzales wrote a memorandum10 stating that the Geneva Conventions were “obsolete” and “quaint” and argued that the President had the constitutional authority to determine they didn’t apply to al Qaeda or the Taliban. All of these acts are rooted in the Unitary Executive Theory – that the Congress cannot infringe on the President’s authority to administer his duties of the executive branch.
Eavesdropping in the U.S. Without Warrants: On January 19, 2006 the Justice Department issued its defense of its NSA activities. Entitled “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,”11 the 42-page document cites, as noted before, the Constitution, the Federalist Papers, the writings of prior presidents and dozens of scholarly papers and court cases to justify its domestic surveillance program. Their legal justification is the same as noted earlier, rooted in the United Executive Theory, that the president has the inherent authority as commander-in-chief to order wiretaps without warrants and that the NSA operation does not violate either a 1978 law governing intelligence wiretaps (the Foreign Intelligence Surveillance Act) or the Fourth Amendment ban on unreasonable searches. This came about largely in response to the January 5, 2006 report by the non-partisan Congressional Research Service which challenged all the administration’s justifications cited for its actions.12 Since one of the Administration's claims as authorization of all of its actions lies in Joint Resolution 23,6 the CRS report found that there was no indication that Congress intended to authorize warrantless wiretaps when it gave him authority to fight al Qaeda and invade Afghanistan. The Justice Department said in its January 19th report that the type of “signals intelligence” used in the NSA operation falls under the Congressional “use of force” authorization. And, it claims that some presidential powers, particularly in the area of national security, are “beyond Congress’ ability to regulate.”
Martial Law and Suspension of Posse Comitatus Act: A set of “national security initiatives,” drawn up in 1982 by Marine Colonel Oliver North, charged the Federal Emergency Management Agency (FEMA) with administering executive orders to implement martial law, establish internment camps, and suspend the Posse Comitatus Act.13 These initiatives were not used until September, 2005 when President George W. Bush tapped them as justification to send troops into the streets of New Orleans following Hurricane Katrina. In addition, FEMA hired former special forces personnel from the mercenary firm Blackwater USA to enforce security. The authority to declare what is or is not a national emergency rests entirely with the president. He does not have to consult or seek the approval of Congress.14 The Department of Homeland Security has established the Northern Command for National Defense, a wide-ranging program that includes FEMA, the Pentagon, the FBI, and the National Security Agency. Executive orders signed by the president allow the Northern Command to send troops into American streets, seize control of radio and television stations and networks, and impose martial law in times of national emergency. Who has the power to declare a national emergency? Only the president.
The Unitary Executive Theory is an extreme view of the executive branch of the U.S. government. It has come to the forefront from time to time but currently is being debated because the current executive administration cites it as justification for assuming broad powers in the “war on terrorism.” Hayward, Kelly & Williams15 sums it up best:
Civil libertarians caution that America’s response to the attacks of September 11 should not impinge upon constitutional rights. Amidst the clamor for action in the wake of the attacks, their warnings are not entirely misplaced. Policy makers should be mindful of the Constitution as they strike against terrorism at home and abroad. We hope that this paper reminds policy makers that the structural mandates of the Constitution are as important for protecting liberty and accountability as the right to speech, or the right of due process. The Commander in Chief Clause is one such provision, and it ensures that our military remains united under one command, a command accountable to civilian authority. As the Administration explores ways to cooperate with our allies against terrorism, it should be mindful always of the limits that the Clause imposes upon the President’s authority to delegate his responsibility as Commander in Chief.
1 Exploring Constitutional Conflicts, University of Missouri, Kansas City School.
2 Wikipedia, Unitary Executive Theory
3 Landmark Cases. www.landmarkcases.org/marbury/legacy.html
4 Yoo, Christopher S., Calabresi, Steven G., & Colangelo, Anthony J. (2005) “The Unitary Executive in the Modern Era, 1945-2004.” Iowa Law Review, Vol. 90, No. 2.
5 Kelley, Christopher S. “Rethinking Presidential Power – The Unitary Executive and the George W. Bush Presidency.” Department of Political Science, Miami University, Oxford, OH. Paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association, April 7-10, 2005, Chicago IL.
6 Senate Joint Resolution 23, 107th Congress, 1st Session.
7 Yoo, John C. Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice. “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Support Them: Memorandum Opinion for the Deputy Counsel to the President.” September 25, 2001.
8 The War Powers Resolution, Public Law 93-148, passed in 1993, limits the power of the President of the United States to wage war without the approval of Congress. Clearly Mr. Yoo believes this Resolution to be unenforceable.
9 May, Christopher N. (1998) Presidential Defiance of "Unconstitutional" Laws. Greenwood Press, Westport CT.
10 Gonzales, Alberto R. January 25, 2002. “Memorandum for the President” Subject: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban.
11 U.S. Department of Justice. “Legal Authorities Supporting the Activities of the National Security Agency Described by the President.” January 19, 2006.
12 Bazan, Elizabeth B. & Elsea, Jennifer K. “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information.” American Law Division, Congressional Research Service, January 5, 2006.
13 The Posse Comitatus Act, Section 1385 of Title 18 of the U.S. Code, prohibits deployment of U.S. troops on American streets.
14 Thompson, Doug. “Bush Could Seize Absolute Control of U.S. Government.” Capital Hill Blue, January 13, 2006.
15 Hayward, Allison R., Kelly, Daniel, & Williams, Michael F. (2003) “The War on Terrorism and the Commander in Chief Clause: Delegation of the President’s Command Authority.” The Federalist Society.
© The Issue Wonk, 2006