The Unitary Executive: Presidential Power from Washington to Bush.

• Jurisdiction: United States
• Date: 22 June 2009
• Author: Krent, Harold J.

THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH. Steven G. Calabresi (1) and Christopher S. Yoo. (2) New Haven: Yale University Press. 2008. Pp. xiii +544. $60.00.

Steven Calabresi and Christopher Yoo's book The Unitary Executive presents an excellent inquiry into the concept of a centralized executive throughout our history. The authors' goal is to persuade the reader that all presidents have viewed the power to supervise and remove subordinates as central to the very meaning of "executive power" in Article II of the Constitution. Without such an ability, presidents would be unable to execute the law effectively and place their stamp on the administration. The authors succeed in attaining that goal, for the record they portray reveals a long tradition of forceful assertion of presidential rights to control policy through close supervision of officers within the executive branch.

In assessing the history, the authors focus on "the president's constitutional power to remove and direct subordinates, including those in entities like the Treasury Department, the Post Office, federal prosecutors, and the independent agencies that some have said are beyond presidential powers of control" (p. 418). All forty-three presidents (prior to the current Administration) have embraced a conception of the unitary executive that at least encompasses the powers to remove and supervise their subordinates' exercise of delegated authority so as to create one centralized executive branch. Moreover, an unbroken historical practice, in their view, lends considerable force to the contemporary question of whether the unitary executive ideal is grounded in the Constitution. (4) Their normative view embraces the unitary executive concept, and they accordingly critique current doctrine, in particular, the Supreme Court's decision in Morrison v. Olson, (5) for permitting Congress to limit the executive's removal authority over agency officials (pp. 377-78). To them, the existence of independent agencies cannot be squared with the historical recognition of the importance of the president's removal authority. (6)

Had the authors only addressed the removal authority, (7) their argument would have been convincing. But the authors claim to be addressing the entire panoply of authorities that can be traced to the unitary executive. The authors never delineate which powers--other than the appointment and removal authorities-are critical to the unitary executive ideal. (8) Thus, it is difficult, at times, to ascertain whether the authors present a historical incident to further their thesis that presidents have consistently asserted a particular power, like the removal authority, or rather merely to applaud a president's actions.

For example, the authors write of President Lincoln's unilateral efforts to prepare the Union for war (pp. 165-69), but it is not clear why. A presidential power to act outside of congressional will, which they at times criticize (pp. 174-78), seems far from falling within a unitary ideal. Moreover, they describe at length the Supreme Court decision in In re Neagle, (9) which affirmed a realm of inherent presidential power in sustaining an executive branch decision--in the absence of congressional authorization--to detail a marshal to protect the life of a threatened Supreme Court Justice (pp. 221-24). (10) There is a conceivable but by no means ineluctable connection between that decision and the unilateral executive. (11) Similarly, the authors commend presidents who have asserted the power to construe the constitution for themselves, but do not explain why that authority fits within their conception of the unitary executive (pp. 69-71, 80, 98). (12) The exercise of the veto power, which the authors discuss at several points, seems even more tangential (pp. 95, 99, 135-36, 153, 385). The book suffers from lack of a taxonomy of powers linked to the unitary executive conception: a strong executive is not necessarily a unitary one.

The unitary executive ideal as traditionally understood focuses not on the relationship between the president and the coordinate branches but more narrowly on the relationship between the president and subordinates within the executive branch. That is why the appointment and removal authorities are so key under this "superintendence" theory. In the absence of such authorities, Congress could delegate key functions to independent presidential subordinates so as to preclude effective centralized control of executive authority by a president. The power of a president to disagree with the Supreme Court's constitutional interpretations or to act in the absence of congressional authorization is beside the point. The historical evidence presented in the book is thus overinclusive, confusing the reader as to the scope of the authors' claims.

Moreover, the evidence addressed is underinclusive as well. For while the material presented to demonstrate longstanding executive views with respect to the removal authority is impressive, no comparable evidence is presented with respect to other potential attributes of the unitary executive ideal. For instance, the unitary executive principle should prompt presidents to centralize authority through executive orders (pp. 12-13) and through efforts to reorganize the executive branch irrespective of Congress's initial assignment of authority. The authors include mention of these attributes, (13) but do not treat them in the same depth or with the same consistency as the removal authority.

The authors stress another possible attribute of the unitary executive principle, namely that the president must have the power not merely to supervise subordinates, but to supplant their authority directly. They state that "[a]ll subordinate nonlegislative and nonjudicial officials exercise executive power ... only by implicit or explicit delegation from the president" (p. 4). With that statement, they suggest that Congress plays only an attenuated role in designating the officer to exercise particular executive functions given that the president retains authority to exercise all delegated authority directly. No matter what powers Congress assigns to particular officeholders, the president can make the final decision. Later, the authors repeat that there has been a consistent view that the president exercises the "power to nullify or veto subordinate executive officials' exercise of discretionary executive authority" (p. 14). Indeed, President George W. Bush's administration recently advanced a similar view that only presidents exercise the "executive" power, and that therefore presidents may nullify anything performed by a subordinate. (14)

As a matter of history, there is no longstanding agreement among presidents as to a "nullification" power. The book itself provides scant evidence of any presidential power to nullify acts of subordinates. (15) The authors elide concepts of control and nullification, persuasively arguing only as to the former. Thus, although the depth and breadth of the evidence they marshal to support a robust presidential removal power are impressive, their further argument as to historical grounding for a nullification power is wholly unpersuasive.

Moreover, the authors overlook a corollary to their unitary executive conception: given that subordinates speak in the president's name, presidents should stand accountable for subordinates' actions. The closer the control claimed by a president over subordinates--as reflected most clearly in the authors' nullification thesis--the more a president should stand accountable for all actions within the executive branch. In litigation against the federal government, however, presidents have argued that the executive branch is comprised of independent governmental entities, and that each must be sued before relief can be accorded. Presidents thereby have reinforced the notion that executive branch agencies possess distinct legal personalities, undermining the authors' thesis of a consistent presidential assertion of a power to supplant the decisionmaking of subordinates. The authors-and to my knowledge, nearly all other commentators-have overlooked that questions concerning the unitary executive have surfaced in routine litigation initiated by private parties against the federal government. In short, although Professors Calabresi and Yoo's book is wonderfully informative about presidential views concerning the unitary executive as a control mechanism, it slights the salience of the same theory in litigation against the federal government. At the end, examining these related contexts should not render the authors' historical examination superfluous, but it does suggest that the presidential practice outside of the removal authority context has not been as uniform as the authors suggest.

In Part I, I review the book, and highlight the authors' stress on the importance of the removal power to understand the unitary executive ideal. The authors present a cornucopia of examples to demonstrate how presidents have viewed the removal power as sacrosanct. The very accumulation of the historical materials discussed strongly supports their view of the centrality of the appointment and removal powers in providing presidents with unitary control over the executive branch.

In Part II, however, I suggest that the authors' more limited focus on a presidential power to nullify acts of subordinates is misguided. Some administrations, most notably that of George W. Bush, have asserted that the Constitution vests presidents with plenary control over all authority delegated to the executive branch. To President Bush and others, a unitary presidency demands not only the power to hire and fire, but also the prerogative to exercise personally all authority delegated by Congress. Irrespective of one's normative reaction to such an assertion--and I have critiqued it in the past (16)--the authors' excellent...