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Unitary executive theory: Difference between revisions
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Subsequent cases such as ''[[Humphrey's Executor v. United States]]'' (presidential removal of certain kinds of officers), and ''[[Bowsher v. Synar]]'' (control of executive functions) have flexed the doctrine's reach back and forth. [[Antonin Scalia|Justice Scalia]] in his solitary dissent in ''[[Morrison v. Olson]]'' argued for an unlimited presidential removal power of all persons exercising executive branch powers, which he argued included the [[independent counsel]]; the court disagreed, but later moved closer to Scalia's position in ''[[Edmond v. United States]]''.<ref>{{cite journal |last1=Calabresi |first1=Steven |last2=Lawson |first2=Gary |name-list-style=amp |year=2007 |title=The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia |url=http://www.columbialawreview.org/assets/pdfs/107/4/Calabresi-Lawson.pdf |url-status=dead |journal=[[Columbia Law Review]] |volume=107 |pages=1002–1047 |archive-url=https://web.archive.org/web/20090306120412/http://www.columbialawreview.org/assets/pdfs/107/4/Calabresi-Lawson.pdf |archive-date=6 March 2009}}</ref> Many of the proponents clerked for Justice Scalia.<ref name=":13" /> | Subsequent cases such as ''[[Humphrey's Executor v. United States]]'' (presidential removal of certain kinds of officers), and ''[[Bowsher v. Synar]]'' (control of executive functions) have flexed the doctrine's reach back and forth. [[Antonin Scalia|Justice Scalia]] in his solitary dissent in ''[[Morrison v. Olson]]'' argued for an unlimited presidential removal power of all persons exercising executive branch powers, which he argued included the [[independent counsel]]; the court disagreed, but later moved closer to Scalia's position in ''[[Edmond v. United States]]''.<ref>{{cite journal |last1=Calabresi |first1=Steven |last2=Lawson |first2=Gary |name-list-style=amp |year=2007 |title=The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia |url=http://www.columbialawreview.org/assets/pdfs/107/4/Calabresi-Lawson.pdf |url-status=dead |journal=[[Columbia Law Review]] |volume=107 |pages=1002–1047 |archive-url=https://web.archive.org/web/20090306120412/http://www.columbialawreview.org/assets/pdfs/107/4/Calabresi-Lawson.pdf |archive-date=6 March 2009}}</ref> Many of the proponents clerked for Justice Scalia.<ref name=":13" /> | ||
In recent years, the Supreme Court has expressed more support for the theory.<ref>{{Cite web |last= |first= |date= |title=List of court cases relevant to executive appointment and removal power |url=https://ballotpedia.org/List_of_court_cases_relevant_to_executive_appointment_and_removal_power|access-date=2024-08-05 |website=Ballotpedia |language=en-US}}</ref><ref>{{Cite journal|last=Sitaraman|first=Ganesh|date=2020|title=The Political Economy of the Removal Power|journal=Harvard Law Review|volume=134|pages=380}}</ref> In ''[[Seila Law LLC v. Consumer Financial Protection Bureau]]'' and ''[[Collins v. Yellen]]'', the Court held that some attempts to curtail presidential removal power of agencies with a single director violate the [[Separation of powers under the United States Constitution|separation of powers]]. Justice Samuel Alito went so far as to write, "The Constitution prohibits even 'modest restrictions' on the President's power to remove the head of an agency with a single top officer." The Court reiterated that the only exceptions to the president's removal power were those precedents found in ''Humphrey's Executor'' and ''Morrison''.<ref name="reason decision">{{cite web | url = https://reason.com/2020/06/29/with-chief-in-charge-scotus-strikes-down-louisiana-abortion-law-and-eliminates-cfpb-independence/ | title = With Chief in Charge, SCOTUS Strikes Down Louisiana Abortion Law and Eliminates CFPB Independence | first = Jonathan | last = Adler | date = June 29, 2020 | access-date = August 5, 2024 | work = [[Reason (magazine)|Reason]] | archive-date = June 29, 2020 | archive-url = https://web.archive.org/web/20200629232919/https://reason.com/2020/06/29/with-chief-in-charge-scotus-strikes-down-louisiana-abortion-law-and-eliminates-cfpb-independence/ | url-status = live }}</ref> The four justices appointed by a Democratic president dissented in ''Seila'', arguing that the constitution makes no such claims.<ref name=":252">{{Cite journal |last=Sitaraman |first=Ganesh |author-link=Ganesh Sitaraman |date=2020 |title=The Political Economy of the Removal Power |url=https://harvardlawreview.org/wp-content/uploads/2020/11/134-Harv.-L.-Rev.-352.pdf |journal=Harvard Law Review |volume=134 |pages=380 |quote=Justice Kagan dissented from the constitutional analysis, along with the three other liberal Justices. In an opinion filled with sharp, cutting language, Justice Kagan protested that there was nothing neutral about the majority’s reasoning or its unitary executive theory of the separation of powers. She systematically argued that 'constitutional text, history, and precedent invalidate the majority’s thesis.' Justice Kagan even accused the majority of 'gerrymander[ing]' their 'made up' rule to strike down the CFPB’s independent structure. For a separation of powers case, this was about as bloody a fight as it gets.}}</ref><ref>{{Cite web |last=Millhiser |first=Ian |date=2020-06-29 |title=The Supreme Court's big decision on the CFPB and the "unitary executive," explained |url=https://www.vox.com/2020/6/29/21307083/supreme-court-cfpb-seila-law-chief-justice-john-roberts-unitary-executive |access-date=2024-08-05 |website=Vox |language=en-US}}</ref> ''Collins'' was a very similar case taken up the next year, and the precedent of ''Seila'' was applied to ''Collins'' in a 7−2 ruling.<ref>{{cite web |date=June 23, 2021 |title=U.S. Supreme Court bolsters presidential power over housing finance agency |url=https://www.cnbc.com/2021/06/23/us-supreme-court-bolsters-presidential-power-over-housing-finance-agency.html |agency= | In recent years, the Supreme Court has expressed more support for the theory.<ref>{{Cite web |last= |first= |date= |title=List of court cases relevant to executive appointment and removal power |url=https://ballotpedia.org/List_of_court_cases_relevant_to_executive_appointment_and_removal_power|access-date=2024-08-05 |website=Ballotpedia |language=en-US}}</ref><ref>{{Cite journal|last=Sitaraman|first=Ganesh|date=2020|title=The Political Economy of the Removal Power|journal=Harvard Law Review|volume=134|pages=380}}</ref> In ''[[Seila Law LLC v. Consumer Financial Protection Bureau]]'' and ''[[Collins v. Yellen]]'', the Court held that some attempts to curtail presidential removal power of agencies with a single director violate the [[Separation of powers under the United States Constitution|separation of powers]]. Justice Samuel Alito went so far as to write, "The Constitution prohibits even 'modest restrictions' on the President's power to remove the head of an agency with a single top officer." The Court reiterated that the only exceptions to the president's removal power were those precedents found in ''Humphrey's Executor'' and ''Morrison''.<ref name="reason decision">{{cite web | url = https://reason.com/2020/06/29/with-chief-in-charge-scotus-strikes-down-louisiana-abortion-law-and-eliminates-cfpb-independence/ | title = With Chief in Charge, SCOTUS Strikes Down Louisiana Abortion Law and Eliminates CFPB Independence | first = Jonathan | last = Adler | date = June 29, 2020 | access-date = August 5, 2024 | work = [[Reason (magazine)|Reason]] | archive-date = June 29, 2020 | archive-url = https://web.archive.org/web/20200629232919/https://reason.com/2020/06/29/with-chief-in-charge-scotus-strikes-down-louisiana-abortion-law-and-eliminates-cfpb-independence/ | url-status = live }}</ref> The four justices appointed by a Democratic president dissented in ''Seila'', arguing that the constitution makes no such claims.<ref name=":252">{{Cite journal |last=Sitaraman |first=Ganesh |author-link=Ganesh Sitaraman |date=2020 |title=The Political Economy of the Removal Power |url=https://harvardlawreview.org/wp-content/uploads/2020/11/134-Harv.-L.-Rev.-352.pdf |journal=Harvard Law Review |volume=134 |pages=380 |quote=Justice Kagan dissented from the constitutional analysis, along with the three other liberal Justices. In an opinion filled with sharp, cutting language, Justice Kagan protested that there was nothing neutral about the majority’s reasoning or its unitary executive theory of the separation of powers. She systematically argued that 'constitutional text, history, and precedent invalidate the majority’s thesis.' Justice Kagan even accused the majority of 'gerrymander[ing]' their 'made up' rule to strike down the CFPB’s independent structure. For a separation of powers case, this was about as bloody a fight as it gets.}}</ref><ref>{{Cite web |last=Millhiser |first=Ian |date=2020-06-29 |title=The Supreme Court's big decision on the CFPB and the "unitary executive," explained |url=https://www.vox.com/2020/6/29/21307083/supreme-court-cfpb-seila-law-chief-justice-john-roberts-unitary-executive |access-date=2024-08-05 |website=Vox |language=en-US}}</ref> ''Collins'' was a very similar case taken up the next year, and the precedent of ''Seila'' was applied to ''Collins'' in a 7−2 ruling.<ref>{{cite web |date=June 23, 2021 |title=U.S. Supreme Court bolsters presidential power over housing finance agency |url=https://www.cnbc.com/2021/06/23/us-supreme-court-bolsters-presidential-power-over-housing-finance-agency.html |agency=Reuters |accessdate=June 23, 2021 |work=[[CNBC]]}}</ref><ref>{{cite court|litigants=Collins v. Yellen |vol=594|reporter=U.S.|opinion=220|pinpoint=|court=|year=2021|url=https://www.oyez.org/cases/2020/19-422}}</ref><ref>{{Cite web |last=Millhiser |first=Ian |date=2020-06-29 |title=The Supreme Court's big decision on the CFPB and the "unitary executive," explained |url=https://www.vox.com/2020/6/29/21307083/supreme-court-cfpb-seila-law-chief-justice-john-roberts-unitary-executive |access-date=2024-08-06 |website=Vox |language=en-US}}</ref> | ||
=== Growth of presidential powers === | === Growth of presidential powers === | ||
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[[Stephen Skowronek]], John A. Dearborn, and [[Desmond King (professor)|Desmond King]] argue that the unitary executive theory is a constitutional nightmare that would cause disruption and consequences the founders hoped to avoid.<ref>{{Cite book |last1=Skowronek |first1=Stephen |url=https://www.worldcat.org/title/on1163936736 |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=Oxford University Press |isbn=978-0-19-754308-5 |edition=New |location=New York, NY |pages=38 |oclc=on1163936736 |quote=...the unitary executive becomes exactly what the founders most feared, a formula for maximum disruption. It is prone to imposing decisions at will, marginalizing dissent, and to radicalizing opposition...Power hierarchically controlled, thoroughly politicized and concentrated in the executive, is a constitutional nightmare, and a bitter denouement for a beleaguered republic.}}</ref> [[Loyola Law School]] professors Karl Manheim and [[Allan Ides]] write, "the separation among the branches is not and never was intended to be airtight" and point to the president's veto power as an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power exercised by the executive branch as necessary elements of the administrative state, but contend that ultimately all administrative power belongs to Congress, not the President, and the only true "executive" powers are those explicitly described in the Constitution.<ref name="Manheim Ides">{{cite journal |last1=Manheim |first1=Karl |last2=Ides |first2=Allan |date=September 2006 |title=The Unitary Executive |journal=[[Los Angeles Lawyer]] |ssrn=943046 |id=Loyola-LA Legal Studies Paper No. 2006-39}}</ref> In this, Manheim and Ides follow in the footsteps of Lessig and Sunstein.<ref name="Lessig" />{{Page needed|date=July 2024}} | [[Stephen Skowronek]], John A. Dearborn, and [[Desmond King (professor)|Desmond King]] argue that the unitary executive theory is a constitutional nightmare that would cause disruption and consequences the founders hoped to avoid.<ref>{{Cite book |last1=Skowronek |first1=Stephen |url=https://www.worldcat.org/title/on1163936736 |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=Oxford University Press |isbn=978-0-19-754308-5 |edition=New |location=New York, NY |pages=38 |oclc=on1163936736 |quote=...the unitary executive becomes exactly what the founders most feared, a formula for maximum disruption. It is prone to imposing decisions at will, marginalizing dissent, and to radicalizing opposition...Power hierarchically controlled, thoroughly politicized and concentrated in the executive, is a constitutional nightmare, and a bitter denouement for a beleaguered republic.}}</ref> [[Loyola Law School]] professors Karl Manheim and [[Allan Ides]] write, "the separation among the branches is not and never was intended to be airtight" and point to the president's veto power as an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power exercised by the executive branch as necessary elements of the administrative state, but contend that ultimately all administrative power belongs to Congress, not the President, and the only true "executive" powers are those explicitly described in the Constitution.<ref name="Manheim Ides">{{cite journal |last1=Manheim |first1=Karl |last2=Ides |first2=Allan |date=September 2006 |title=The Unitary Executive |journal=[[Los Angeles Lawyer]] |ssrn=943046 |id=Loyola-LA Legal Studies Paper No. 2006-39}}</ref> In this, Manheim and Ides follow in the footsteps of Lessig and Sunstein.<ref name="Lessig" />{{Page needed|date=July 2024}} | ||
[[David J. Barron]] (now a federal judge) and [[Marty Lederman]] have criticized the unitary executive theory. They acknowledge that there is a compelling case for some form of a unitary executive within the armed forces,<ref name="Barron-Lederman">{{cite journal |last1=Barron |first1=David |last2=Lederman |first2=Martin |url=http://www.harvardlawreview.org/issues/121/jan08/barron_lederman.shtml |title=The Commander in Chief at the Lowest Ebb: Framing The Problem, Doctrine, And Original Understanding |journal=[[Harvard Law Review]] |publisher=[[Harvard University]]|location=Cambridge, Massachusetts|volume=121 |page=689 |year=2008 |quote=we think the text, as reinforced by historical practice, makes a strong case for at least some form of a 'unitary executive' within the armed forces, particularly as to traditional functions during armed conflicts. |url-status=dead |archive-url=https://web.archive.org/web/20090125114946/http://harvardlawreview.org/issues/121/jan08/barron_lederman.shtml |archive-date=January 25, 2009 }}</ref> but argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and that the [[Article Two of the United States Constitution#Clause 1: Command of military; Opinions of cabinet secretaries; Pardons|Commander in Chief Clause]] would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the president.<ref name=":15">{{cite journal |last1=Barron |first1=David |last2=Lederman |first2=Martin|url=http://www.harvardlawreview.org/issues/121/feb08/barron_lederman2.shtml |title=The Commander in Chief at the Lowest Ebb: A Constitutional History |journal=[[Harvard Law Review]] |publisher=[[Harvard University]]|location=Cambridge, Massachusetts|volume=121 |page=941 |year=2008 |quote=there are those who would argue that the 'unitary executive' must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence. |url-status=dead |archive-url=https://web.archive.org/web/20090124223310/http://harvardlawreview.org/issues/121/feb08/barron_lederman2.shtml |archive-date=January 24, 2009 }}</ref> The [[BBC]] has called the theory "controversial",<ref name=":2">{{cite news |last1=Wendling |first1=Mike |date=July 7, 2024 |title=Project 2025: A wish list for a Trump presidency, explained |url=https://www.bbc.com/news/articles/c977njnvq2do |publisher=BBC |quote=...a controversial idea known as 'unitary executive theory'}}</ref> and '' | [[David J. Barron]] (now a federal judge) and [[Marty Lederman]] have criticized the unitary executive theory. They acknowledge that there is a compelling case for some form of a unitary executive within the armed forces,<ref name="Barron-Lederman">{{cite journal |last1=Barron |first1=David |last2=Lederman |first2=Martin |url=http://www.harvardlawreview.org/issues/121/jan08/barron_lederman.shtml |title=The Commander in Chief at the Lowest Ebb: Framing The Problem, Doctrine, And Original Understanding |journal=[[Harvard Law Review]] |publisher=[[Harvard University]]|location=Cambridge, Massachusetts|volume=121 |page=689 |year=2008 |quote=we think the text, as reinforced by historical practice, makes a strong case for at least some form of a 'unitary executive' within the armed forces, particularly as to traditional functions during armed conflicts. |url-status=dead |archive-url=https://web.archive.org/web/20090125114946/http://harvardlawreview.org/issues/121/jan08/barron_lederman.shtml |archive-date=January 25, 2009 }}</ref> but argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and that the [[Article Two of the United States Constitution#Clause 1: Command of military; Opinions of cabinet secretaries; Pardons|Commander in Chief Clause]] would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the president.<ref name=":15">{{cite journal |last1=Barron |first1=David |last2=Lederman |first2=Martin|url=http://www.harvardlawreview.org/issues/121/feb08/barron_lederman2.shtml |title=The Commander in Chief at the Lowest Ebb: A Constitutional History |journal=[[Harvard Law Review]] |publisher=[[Harvard University]]|location=Cambridge, Massachusetts|volume=121 |page=941 |year=2008 |quote=there are those who would argue that the 'unitary executive' must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence. |url-status=dead |archive-url=https://web.archive.org/web/20090124223310/http://harvardlawreview.org/issues/121/feb08/barron_lederman2.shtml |archive-date=January 24, 2009 }}</ref> The [[BBC]] has called the theory "controversial",<ref name=":2">{{cite news |last1=Wendling |first1=Mike |date=July 7, 2024 |title=Project 2025: A wish list for a Trump presidency, explained |url=https://www.bbc.com/news/articles/c977njnvq2do |publisher=BBC |quote=...a controversial idea known as 'unitary executive theory'}}</ref> and ''The Guardian'' called it "contested"<ref name=":3">{{Cite news |last=Pengelly |first=Martin |date=2023-09-15 |title=US hard-right policy group condemned for 'dehumanising' anti-LGBTQ+ rhetoric |url=https://www.theguardian.com/world/2023/sep/15/project-2025-policy-manifesto-lgbtq-rights |access-date=2024-07-11 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref> and a "quasi legal doctrine".<ref name=":42">{{Cite news |last=Pilkington |first=Ed |date=2024-06-07 |title=Trump plots capture of DoJ in renewed assault on US justice system |url=https://www.theguardian.com/us-news/article/2024/jun/07/trump-justice-department |access-date=2024-07-11 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref> In 2007, [[Norman Ornstein]] wrote in ''[[The Economist]]'' that an overwhelming majority of constitutional scholars and historians find the theory "laughable".<ref name=":14">{{Cite news |last=Ornstein |first=Norman |date=June 26, 2007 |title=Blog: Cheney's chutzpah |url=https://www.economist.com/democracy-in-america/2007/06/25/cheneys-chutzpah |access-date=2024-07-11 |newspaper=The Economist |issn=0013-0613}}</ref> | ||
=== Democracy === | === Democracy === | ||