UNITARY EXECUTIVE

The idea of a unitary executive is neither new nor radical. The Framers rejected several proposals to split the executive, and there have been adherents of a strong centralized executive ever since, from george washington to william howard taft to ronald reagan. The language of Article II of the Constitution seemingly embraces some form of unitary executive by vesting "the executive power " in a President; assigning the President the responsibility to "take Care that the Laws be faithfully executed"; and directing the President to appoint all principal officers of the United States. Arguments today for greater centralized control based on the unitary executive ideal coalesce around two virtues: accountability and effective leadership.

The constitutional structure stresses accountability in order to secure individual liberty. Articles I, II, and III delineate powers that the branches are to exercise, the better to clarify the lines of constitutional authority. The President stands responsible for all discharge of policy, and is judged by his or her performance on election day. To be sure, voters cannot always call the President to account with respect to one particular issue given that they vote for a candidate based on that candidate's entire record. Nonetheless, the political process remains open to air misgivings about presidential leadership, and as those concerns mount in importance, they may become determinative at election time.

This is not to suggest that the President must personally craft all foreign and domestic policy initiatives. Congress can create new offices pursuant to the necessary and proper clause and delegate responsibility to government officials. But the President must be able to superintend that policy in order not to fragment and dissipate accountability. As alexander hamilton noted in Federalist No. 70:

[It] often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure … ought really to fall.… [The] circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that where there are a number of actors who may have had different degrees and kind of agency … it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.

Liberty is gained to the extent that one electorally accountable official stands responsible for such law implementation efforts. With a plural executive, responsibility may be shrouded, and the costs of determining who was responsible for what will increase.

Given the pervasive delegations by Congress, the President can maintain control for law administration principally through the appointing and removal power exercised over executive officials. Although there may be disagreement about the level of officer subject to the President's appointment power, those adhering to the unitary executive regard restrictions on the President's appointment authority with great suspicion. Congress's decision to reserve for its own officers implementation authority, as in the federal election campaign act, or Congress's decision to vest appointment authority in the judiciary, as with the independent counsel, undermine the accountability imperative.

Similarly, the power to remove officers represents the only formal means by which the President can control subordinates' ongoing exercise of power and ensure unified execution of the law. The power to remove an official is emblematic of a continuing relationship between the President and subordinate officials and, in the public eye, links those officials' conduct to the presidency itself. When Congress prevents the President from removing executive officers, as with the tenure of office act during reconstruction, accountability is diminished.

Disagreement remains over the type of removal authority that must be wielded to ensure the rudiments of centralized control. The Supreme Court delphically stated in Morrison v. Olson (1988) that Presidents must retain control sufficient to discharge their "constitutionally appointed functions." Morrison apparently authorizes Congress to prevent the President from discharging most officials except upon a showing of "good cause," such as misconduct in office. Some would argue instead that the President must be able to discharge at will any senior executive official to preserve the close connection between the President and the exercise of administrative authority. A middle position is that the President should be able to remove any senior official for refusing to abide by lawful presidential policy. But, whatever the line drawn, those believing in the unitary executive insist that Congress not have the power to establish shadow executive departments.

At the same time, the idea of a unitary executive accords a single executive the responsibility to manifest "energy" in execution of the laws passed by Congress. Consolidating power in an energetic executive provides the best hope for protecting the public from external threats to the nation's sovereignty as well as from internal threats of violence or anarchy. james madison wrote in Federalist No. 37 that "[e]nergy in government is essential to … security against external and internal danger, and to prompt and salutary execution of the laws." A single executive can implement the laws with greater dispatch and efficiency.

The risks attendant upon conduct of foreign affairs by a plural entity are perhaps most clear. A deliberative body cannot easily take the decisive measures, in diplomacy or in war, upon which our national security depends. Disagreement may paralyze the governing body, preventing it from acting vigorously in response to foreign threats. These reasons presumably explain why Article II mandates that the President serve as commander-in-chief of the armed forces.

Similar arguments are valid on the domestic policy front. Congress sets the policy, but enormous influence can be wielded by those carrying out the legislative directives. Whether the issue be implementing health care reform initiatives or administering the grazing fee system, a unitary executive permits greater vigor in law administration. Consolidating control in the executive also permits flexibility in enforcement efforts as conditions change. In short, a unitary executive not only safeguards individual liberty by ensuring an avenue of political redress for all law administration but facilitates effective governance as well.

Harold J. Krent
(2000)

Bibliography

Calabresi, Stephen G. 1995 Some Normative Arguments for the Unitary Executive. Arkansas Law Review 48:23–104.

Calabresi, Stephen G. and Prakash, Saikrishna 1994 The President's Power to Execute the Laws. Yale Law Journal 104: 541–665.

Caminker, Evan 1997 The Unitary Executive and State Administration of Federal Law. Kansas Law Review 45:1075–1112.

Krent, Harold J. 1990 Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government. Northwestern University Law Review 85:62–112.

Lessig, Lawrence and Sunstein, Cass R. 1994 The President and the Administration. Columbia Law Review 94:1–119.

Strauss, Peter L. 1984 The Place of Agencies in Government: Separation of Powers and the Fourth Branch. Columbia Law Review 84:573–669.