How It's Used

“In yesterday's interview with Chris Wallace, he [Vice President Dick Cheney] was as blunt as anyone can be in articulating the Nutty Version of the Unitary Executive Theory:

The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.

“The claim that 'the nature of the world we live in' warrants a perennially unchecked executive branch can be delivered with all the gravitas in the world, and it still amounts to constitutional nonsense. To this end it's well worth reading Absolute Power, in which distinguished legal journalist John MacKenzie takes a close look at claims about the unitary executive. MacKenzie shows how a scholarly constitutional claim about the right of executive branch officials to interpret the Constitution morphed into the aggressively ahistorical interpretation of executive power that Cheney parrots with such perfect confidence. As MacKenzie writes: 'The unitary executive has come a long way for a theory that has a hole in its heart and no basis in history or coherent thought. It simply is devoid of content, not expressed or even strongly implied in foundational documents such as The Federalist, not to mention the Constitution.’”—

—Dahlia Lithwick, “Open and Shut Cases: Dick Cheney's unique gift for making hard questions easy and vice versa,” Slate, December 22, 2008.

"David Addington. Dick Cheney's top aide told Congress in June that he didn't even know what the unitary executive theory of presidential power was. This would be rather like Lavrenti Beria insisting that Lubyanka prison was actually a hotel."

—Michael Tomasky, "Comment & Debate: Welcome to America's hall of shame: From Sarah Palin to AIG's pamper-hungry sales reps, the following characters have made us less than proud," The Guardian (UK), December 31, 2008.

"Ms. Kagan, 48, is dean of Harvard Law School. She has a powerful and varied resume and has produced a substantial paper trail. But she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration's broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition.

"She did offer a glimpse of her views in a 2001 article in The Harvard Law Review that considered the 'unitary executive' theory. The phrase is sometimes used as shorthand for the Bush administration's assertion that it has broad powers that cannot be limited by Congress or the courts. In her article, Ms. Kagan addressed an earlier and narrower meaning of the phrase, one made popular during the Reagan administration, concerning the scope of the president's power to control the executive branch itself. She found that such presidential control 'expanded dramatically during the Clinton presidency,' a development she largely welcomed. But she said Congress, experts and interest groups should also play a role in informing the executive branch's actions."

—Adam Liptak, "Obama's Choice for Solicitor General Has Left a Breach in a Long Paper Trail," The New York Times, January 7, 2009.

"A conservative advocacy group challenging the law maintains that the structure undermines the 'unitary executive,' a constitutional theory that contends that executive power can be wielded only by the president, or through subordinates he can remove at will.

"The high court has never fully embraced the theory, and in prior decades upheld the constitutionality of independent agencies like the SEC, whose members generally can be removed only for cause. But conservatives like Justice Alito, an adherent of unitary executive theory, could use the case to revisit precedent they feel improperly diminishes presidential authority."

—Jess Bravin, "Pocket Docket: Supreme Court's New Season; Justices Face an Unusually Diverse Caseload; Some Legal Observers Expect the Conservative Bloc to Overrule Past Opinions," The Wall Street Journal, September 29, 2009, p. A21.

Links

Beyond eAlmanac
Wikipedia article on the Unitary Executive Theory

Product Links
"The Unitary Executive: Presidential Power from Washington to Bush" by Steven G. Calabresi and Christopher S. Yoo