Putting the "Executive" in the Unitary Executive

Sometimes this debate resembles an old SNL Emily Litella sketch: "What's all this about a 'Unitarian executive'?" The key is understanding "executive," not the "unitary" part.

Readers of Political Questions may be interested in my short symposium article on the Unitary Executive — a topic much debated on the Three Whiskey Happy Hour.

I argue that many who write about the unitary executive theory — including Justices of the Supreme Court — forget that the Presidency is not just “unitary,” but also “executive.” I critique a contribution by James G. Rogers for focusing only on the organization of the executive branch, but without addressing its powers. In my view, the President is not just the head of an HR department — deciding just who gets hired and fired. The unitariness of the branch would not matter much without the powers vested by Article II in the President.

"Rogers defines unitary executive, however, as only extending to the president’s constitutional right to remove inferior officials. But as a matter of theory, we cannot divorce the independence of the executive branch from its substance. While the Framers wanted to restore unity and independence to the executive branch, they also remained focused on the actual powers to be given to the president. In The Federalist Papers, Alexander Hamilton observed that the president had to be directly elected, for example, rather than chosen by the legislature, and should be one man, rather than multiple leaders, to allow the executive to act with energy and speed. But Hamilton also wrote there that the president would possess well-understood powers, even in—or especially in—the area of foreign affairs and national security. “Of all the cares or concerns of government,” Hamilton wrote in Federalist #74, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

The very theory of constitutional interpretation that established the unitary executive did not arise in the context of the removal power. The logic, announced most spectacularly by Justice Scalia in his dissent in Morrison v. Olson, maintains that Article II, § 1’s Vesting Clause grants all of the federal executive power to the president alone, subject only to narrow, explicit exceptions in the text itself. Under the pseudonym of Pacificus, Hamilton advanced the theory in defense of President George Washington’s declaration of neutrality in the wars of the French Revolution. The authority to proclaim neutrality did not depend on the president’s power of removal, but on an implicit executive authority to set and conduct foreign policy on behalf of the nation.”