The Unitary Executive: Presidential Power from Washington to Bush
NOVEMBER 18, 2009 by JOSEPH R. STROMBERG
Steven G. Calabresi and Christopher S. Yoo count as founding fathers of the much-debated unitary executive theory (UET), which they named in 1992. In this large book they argue that every American president has subscribed to the theory, and that along with constitutional text and structure, this continuous presidential practice makes the law.
Briefly, UET asserts that a great thing or shapeless blob is granted in Article II: “the executive power.” (We naïve folk thought it just named a job.) Presidential power to remove subordinates (at will) follows directly. “Departmentalism” is another implication. This finds the executive to be a coequal interpreter of the Constitution along with Congress and the Supreme Court. (The states need not apply.)
The authors, both law professors, undertake a Maoist Long March through 43 presidencies, turning up many uses (and abuses) illustrating presidential power. It all amounts to a revealing, power-centric history of the United States. The authors purport to adduce “solid antecedents” for their view, such as James Wilson’s ruminations during the Pennsylvania ratifying convention.
Calabresi and Yoo’s key evaluative tool is how much a given president improved and empowered the mighty office. First up, George Washington supervised, removed, controlled all prosecutions (just like George III), called out militia, and granted pardons. Thomas Jefferson executed an embargo and bought Louisiana. Andrew Jackson was a Bonapartist (my term), who somehow embodied The People. Lincoln deployed, suspended, censored, “repelled” attacks, and invented presidential war powers by wedding the commander-in-chief clause to the “Take Care” clause. In fact, say the authors: “The Civil War was fought over the issue of the president’s authority to take care that the laws be executed in the South.” This is a peculiar focus indeed.
Much later, President McKinley’s foreign policy and war strengthened the office. Teddy Roosevelt had no war but nevertheless issued numerous executive orders to expand the reach of the presidency. Woodrow Wilson, war in hand, did much more. Under Franklin Roosevelt, “power exploded,” as he controlled, executed, and issued innumerable orders. Harry Truman got us into Korea with unitary fervor. When he unitarily seized certain steel mills, the Supreme Court declared that while the president has much unspecified power, it wasn’t quite as much as Truman asserted.
Leading largely by stealth, President Eisenhower removed officials, delegated authority, ordered federal troops into Arkansas, and expanded claims of executive privilege to thwart Senator McCarthy. The ill-starred John Kennedy issued numerous orders and had federal troops invade Mississippi. Lyndon Johnson pushed presidential power well beyond Kennedy, and Nixon stalwartly asserted yet more executive powers. The upward trajectory continued on through Reagan, Clinton, and the Bushes.
Other presidents weigh less in the unitary scale. James Buchanan, the authors’ “worst president,” failed to bring on war and grab power. Andrew Johnson at least defended the office against congressional Radicals. Hoover was only so-so but did much executing of Prohibition and issued the Stimson Doctrine. Even Jimmy Carter, called the “nadir” of executive power, at least ordered the freezing of Iranian assets. They also serve who only keep presidential powers intact. Naturally, this reduces the normal (“historically correct”) charges against them.
War meets with awkward treatment in this book. Popular wars or those too ancient to stir controversy may be mentioned, mostly as an arena for presidential heroics. The Mexican War squeaks by and the “Civil War” and World Wars I and II are noticed. The Spanish-American War gets an allusion. Oddly, the word “Vietnam” hardly intrudes on the discussion of Kennedy, LBJ, and Nixon. Neither would we ever learn here that anything warlike happened under George H. W. Bush or Bill Clinton. After all, an office best suited for getting us into wars might seem less lustrous if all the wars were reckoned in.
Now it comes out that there are two flavors of UET. Our authors only claim that whatever executive powers really exist belong to the president alone. They are quite reasonable and do not believe in certain “inherent” powers that George W. Bush asserted. But with so many undefined and nebulous powers so moderately claimed, how can the “moderate” UE theorists spy the “excessive” ones?
Much like Hobbes’s Leviathan, this is a good book: It shows us what is at stake. Is the case made? Should enemies of the UET concede? It might seem so, but there is a problem. It would be easy enough to write a lengthy work proving that for 200 years prominent American burglars have firmly asserted their “right” to break and enter. This would neither put our minds at rest nor establish the “right.”
So it is with the American executive. This interesting book demonstrates that most American presidents have been unwilling to abide by constitutional limits on their power, but not that their power was meant to be almost limitless.