The Unitary Presidency

Graham Dodds

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138484177
• eBook ISBN: 9781351052764
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

The theory of the unitary executive is one of the most controversial and significant constitutional doctrines of the past several decades. It holds that the U.S. president alone embodies all executive power and therefore has unlimited ability to direct the many people and institutions within the federal government's vast executive branch. It thus justifies the president's prerogative to organize the executive branch and to direct its activities, to tell executive personnel what to do and to fire them if desired, to control the flow of information, and to issue signing statements that make judgments about constitutionality and determine the extent to which laws will be implemented. In some versions, it also endorses implied or inherent powers and permits the president to completely control foreign policy and military action.

Proponents say this conception of the presidential office is faithful to the Constitution, facilitates the sort of energetic executive that Alexander Hamilton argued for, and enhances administrative efficacy and political accountability for governance. Critics say this arrangement is constitutionally inaccurate, is belied by historical practice and legal precedents, and is dangerously close to the monarchical power that provoked the American Revolution – and can be especially threatening in the era of Donald Trump.

This book examines how controversies about unitary executive power have played out from the founding era to the present day with a focus on recent presidents, it explores arguments both for and against the unitary executive theory, and it looks ahead to future implications for American politics.

1

Nearly Two Centuries of Unitary Precedents

Although the theory of the unitary executive as such was not explicitly named or consciously promoted until the 1980s, there were many earlier precedents that some observers claim reflect a commitment to what would now be called the unitary executive. Indeed, in defending the theory of the unitary executive, Steven Calabresi and Christopher Yoo claimed in their book The Unitary Executive: Presidential Power from Washington to Bush (2008, 4) that “all of our nation’s presidents have believed in the theory of the unitary executive.” In their telling, even William Henry Harrison, who served as president for only one month and was a member of the Whig Party ideologically opposed to a strong executive, demonstrated support for robust presidential removal and appointment powers.

Strictly speaking, the claim that presidents before the late twentieth century supported the unitary executive is anachronistic, as it seeks to establish that something which was not named or fully described until the 1980s actually existed generations earlier. But the claim is nevertheless important for two reasons. First, insofar as it establishes that the unitary executive did not emerge from nothing in the Reagan years but rather built upon older precedents, it suggests that the unitary executive is not radically at odds with American political traditions.

Second, the Supreme Court has indicated that a long record of historical practices may inform constitutional understandings and to an extent even constitute constitutional arrangements. The classic statement on the importance of historical practice to the interpretation of presidential power is in Justice Felix Frankfurter’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952):

[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by § 1 of Art. II.

Thus, if there were voluminous evidence of a proto-unitary executive and congressional acquiescence to it before the 1980s, then the doctrine might be constitutional.

This chapter examines episodes concerning what would later be called the unitary executive from George Washington through the 1970s, or nearly the country’s first two centuries. The aim is to explore how some of the theoretical concerns noted in the previous chapter have played out in the real world of interbranch politics, and also to lay the historical foundation for the discussion in the next two chapters of the more direct and dramatic invocations of the unitary executive theory in more recent decades.

The Eighteenth Century

On some interpretations, the unitary executive dates to the earliest days of the republic. In what was essentially the first executive order ever issued by a president, in 1789 George Washington ordered holdover officials from the old government of the Articles of Confederation “to impress me with a full, precise, and distinct general idea of the affairs of the United States” with which they dealt. The effort to control the activities of subordinates is a key part of the unitary executive, and Washington’s order arguably reflected that sensibility.

Also, in 1789, the very first Congress debated the creation of cabinet departments within the executive branch, each to be headed by a Secretary, who would be removable by the president. But concern soon arose about the nature of the president’s removal power, which is a prime feature of the unitary executive. Members of Congress disagreed about whether the president already had the power to remove such officials based on the language of Article II (i.e., the unitarian interpretation), or Congress would have to delegate a removal power to the president, or any removal would require the consent of the Senate, or if impeachment was the only legitimate way to remove an official. Congress debated the issue for over a month and finally passed bills to create the Departments of Foreign Affairs, Treasury, and War, without explicitly giving the president a removal power for those officials. For today’s unitarians, this indicated that Congress believed the president already possessed the removal power via the Constitution. Indeed, as George W. Bush’s Deputy Assistant Attorney General John Yoo wrote in an Office of Legal Counsel (OLC) opinion over 200 years later, “As reflected in the great debate over removal in the very first Congress, the Framers rejected a legislative role in removal in favor of plenary presidential power over officers appointed by the President …”

John Adams’s presidency was marked by intolerance of political dissent, and that attitude extended to his own Cabinet. In 1800, Adams asked for Secretary of War James McHenry to resign, and he also dismissed Secretary of State Timothy Pickering, after they opposed Adams’s policy of making peace with France. Again, a president’s ability to control and remove subordinates is key to the unitary executive.

The Nineteenth Century

Thomas Jefferson initiated several actions that were in keeping with the unitary executive. He ordered Secretary of State James Madison to withhold the commissions for several of John Adams’s “midnight” judicial appointments that Adams’s Secretary of State, John Marshall, had failed to deliver before the end of Adams’s term, including that of would-be justice of the peace William Marbury. The controversy soon led to the case of Marbury v. Madison (1803), in which Marshall, who was then the Chief Justice, ruled that the Court could not compel the executive branch to deliver Marbury’s commission.

Jefferson’s other quasi-unitarian actions included his nonenforcement of the Sedition Act of 1798, which he thought was unconstitutional, and granting pardon for people who had been convicted of violating it. In 1803, Jefferson initiated the Louisiana Purchase, even though he believed that the Constitution gave him no authority to do so. Unitarians tend to support that sort of bold presidentialism, even if it is not explicitly provided for by the Constitution. Jefferson also arguably exhibited the unitarian practice of directing subordinates to follow the president’s desires rather than those of another branch, as he instructed revenue collectors to hold a vessel in order to enforce a trade embargo, and he ordered them to ignore judicial decisions that he lacked such authority (Yoo 2010, 246 n19).

In 1822, James Monroe issued what might now be called presidential signing statements, as he sent two messages to Congress to express concerns about the constitutionality of a statute which he felt wrongly limited his power to make certain military appointments. Monroe complained that the law amounted to “taking from the President all agency in their appointment” and that “Such a construction would not only be subversive of the obvious principles of the Constitution, but utterly inconsistent with the spirit of the law itself.”

In the 1830s, Andrew Jackson undertook several unitarian actions. He refused to enforce the Supreme Court’s decision in Worcester v. Georgia (1832), which favored Cherokee control over tribal lands in Georgia. Jackson allegedly declared “John Marshall has made his decision, now let him enforce it,” and although the quotation might be apocryphal, the president’s refusal to accept the constitutional determination of the judiciary was clear.

One year later, Jackson sought to remove federal funds from the Second Bank of the United States, which he opposed. Treasury Secretary Louis McLane refused to remove government deposits from the bank, so Jackson replaced him with William Duane. When Duane also refused to remove the deposits, Jackson fired him. When the Senate asked Jackson to provide documents relating to his opposition to the bank, he refused to comply. This led the Senate to censure Jackson in March 1834, for assuming “authority and power not conferred by the Constitution.” (Several years later his censure was expunged.) In his message to the Senate of April 15, 1834 to protest his censure, Jackson explained his view of presidential purview over personnel:

The whole executive power being vested in the President, who is responsible for its exercise, it is a necessary consequence that he should have a right to employ agents of his own choice to aid him in the performance of his duties, and to discharge them when he is no longer willing to be responsible for their acts. In strict accordance with this principle, the power of removal, which like that of appointment, is an original executive power, is left unchecked by the Constitution in relation to all executive officers.

In 1835, Jackson’s new Postmaster General Amos Kendall refused to honor a contract that his predecessor had made. When the District of Columbia circuit court ordered him to honor it, he refused. And when Congress passed a law in 1836 instructing him to honor it, he still refused. Kendall argued that the law infringed upon an area of executive control and that the contracts were based on political favoritism. In Kendall v. the United States (1838), the Court said that Congress or the courts can order executive officials to perform statutorily required ministerial duties, but that such control does not extend to duties that involve executive discretion. In short, the Court said some executive branch actions were subject to the control of the other branches, while other actions were not:

There are certain political duties imposed upon many officers in the executive department the discharge of which is under the direction of the President. But it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper which is not repugnant to any rights secured and protected by the Constitution, and, in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case where the duty enjoined is of a mere ministerial character.

The Court felt that Kendall’s actions fell into the ministerial category and therefore said that he had to do what Congress had ordered.

However, regarding the argument that the President could supposedly direct the postmaster general because of the “take care” clause, the Court said:

This doctrine cannot receive the sanction of this court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle, which, if carried out in its results to all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress and paralyze the administration of justice.

Abraham Lincoln claimed emergency powers in 1861 to fight the Civil War, a claim that most unitarians would accept. However, he did not claim that his actions were constitutional, as most unitarians would, and he later wrote to Congress to defend his actions. Lincoln also ignored Chief Justice Roger Taney’s ruling in Ex parte Merryman (1861) against the president’s right to suspend the writ of habeas corpus. Lincoln criticized Taney’s decision in an address to Congress, and he continued to suspend the writ as he saw fit, refusing to accept the Court’s determination of what was constitutional.

After Lincoln was assassinated, Andrew Johnson sparred with Radical Republicans in Congress over Reconstruction and even faced opposition from his own Cabinet, particularly Secretary of War Edwin Stanton. Johnson tried repeatedly to remove Stanton, even after Congress passed the 1867 Tenure of Office Act over his veto to limit the president’s removal power by requiring senatorial approval. Johnson believed that the Tenure of Office Act was unconstitutional, and he tried to appoint a new Secretary of War in part to challenge the law in court. This led to his impeachment in February 1868.

The last several decades of the nineteenth century are often regarded as a period of congressional dominance, in which Congress asserted itself while presidents seldom did so, and that basic dynamic can be seen in issues relevant to the unitary executive. For example, the Interstate Commerce Act of 1887 led to the creation of the Interstate Commerce Commission (ICC), which was arguably the first independent agency. Future presidents would strongly oppose independent entities within the bureaucracy, per the unitarian view that the chief executive must control the entire executive branch.

Other aspects of this era suggest a more nuanced dynamic with regard to the unitary executive. For example, the Pendleton Civil Service Act of 1883 shifted federal employment from political spoils to a merit-based system and made it illegal to fire employees for political reasons, but it did not otherwise reduce the president’s power to manage or remove employees. And when congressional Republicans sought to limit the president’s ability to remove officials in 1887, Grover Cleveland fought back and successfully insisted on the repeal of the Tenure of Office Act, which he saw as an unconstitutional infringement on the president’s power of removal.

The Twentieth Century

In 1899, William McKinley issued an order to remove a government appraiser, who then refused to leave his job and continued to work without being paid. This led to the case of Shurtleff v. United States (1903), in which the Supreme Court upheld McKinley’s right to remove the official. Relying on several earlier cases, the Court endorsed a robust presidential removal power:

it cannot be doubted that, in the absence of constitutional or statutory provision, the President can, by virtue of his general power of appointment, remove an officer, even though appointed by and with the advice and consent of the Senate.

If McKinley presaged a return to a more assertive presidency, Theodore Roosevelt (TR) made it clear that Congress and the courts would have to deal with a powerful and active president. TR articulated the “stewardship” theory of presidential leadership, claiming that the president was uniquely able to discern the national interest and to advance it. Indeed, TR believed that the president should be at the forefront of an activist federal government. And he coupled this view of the primacy of the presidency with an expansive view of presidential power, according to which the president could act as he saw fit unless explicitly forbidden from doing so; for TR the Constitution limited rather than empowered the president. TR explained these points in his autobiography (1913):

My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of the departments. 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.

Driven by these principles, TR issued a great many executive orders and proclamations to advance Progressive causes, despite opposition from various quarters. For example, in 1904 he ordered the redesign of U.S. coins, contrary to the wishes of the U.S. Mint. In 1905, without consulting Congress, he issued an executive order to create the Committee on Department Methods, better known as the Keep Commission, and directed it to study administrative reforms. Congress perceived this as a presidential effort to seize control of the bureaucracy, so it ignored the committee’s recommendations, it refused to appropriate funds to publish the recommendations, and it passed a law forbidding the future creation of commissions by executive order. TR also used executive orders to enact controversial changes concerning the civil service, work conditions and union efforts for government employees, and veterans’ pensions, among other issues.

Although TR’s successor William Howard Taft adhered to a more limited view of presidential power, Woodrow Wilson was more active. As a scholar, Wilson had favored keeping administration independent from political influence. But as president, Wilson oversaw the segregation of federal offices, he issued an executive order to suspend the eight-hour workday for government employees, he secured passage of a law that permitted him to reorganize parts of the government, and he issued an executive order to create the War Industries Board to coordinate production efforts for World War I.

In 1920, Wilson ordered the removal of postmaster Frank Myers, contrary to a law from 1876 that called for the Senate to consent to any removal of postmasters. In Myers v. United States (1926), the Court voted 5-4 to uphold the president’s exclusive power to remove executive branch officials. Chief Justice (and former President) Taft wrote the majority opinion, in which he articulated a robust defense of the president’s removal power. Taft drew on the Decision of 1789 and argued that Congress could not place any restrictions on the president’s ability to remove an executive official.

Unitarians tend to cite Myers as defending a broad presidential power to remove subordinates, but ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• Introduction: The Theory of the Unitary Executive
• 1 Nearly Two Centuries of Unitary Precedents
• 2 Explicit Unitary Battles in the 1980s and 1990s
• 3 The Unitary Executive in the Twenty-First Century
• 4 Normative Assessment of the Unitary Executive
• 5 Empirical Assessment of the Unitary Executive
• Conclusion: Unitary Politics
• Epilogue
• Bibliography