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Elsewhere: III, II, I ... Unitary Executive!

Why presidents love to re-read the Constitution ...
from bottom to top.
An Independent AG?

See what Saikrishna B. Prakash and William P. Marshall have to say in a debate related to this paper.

When making its case for broad presidential power, the Bush Administration tends to leave no precedent unturned including the deeds of previous presidents. In his recent testimony before the Senate Judiciary Committee, Attorney General Alberto Gonzales said that presidents going all the way back to George Washington have engaged in domestic surveillance without getting a warrant from a judge.

Gonzales wasn't the first to bolster support for a sitting president by invoking the founding fathers. In the 1980s, when scandals of the Reagan Administration prompted the appointment of several independent counsels to investigate the alleged wrongdoing, conservative scholars began developing the concept of the "unitary executive" as part of their argument that these inquiries were unconstitutional. Their starting point was the proposition that the president alone has the power to hire, fire, and direct the people he appoints in the administration, including independent counsels as part of the Justice Department.

A 1992 article by Steven Calabresi and Kevin Rhodes in the Harvard Law Review justified this theory by drawing from the text and structure of the Constitution. Their article, "The Structural Constitution: Unitary Executive, Plural Judiciary," has become a benchmark of unitary executive theory. It responds to the case of Morrison v. Olson, in which the Court rejected the idea that the president had the power to remove an independent counsel appointed by the Justice Department. Justice Antonin Scalia's lone dissent relied on a unitary executive type of claim.

The Calabresi and Rhodes piece is appealing because it attempts to stake out politically neutral ground for a claim that has always been used as a tool of the party in power. It argues that the best, most consistent reading of constitutional language gives the president exclusive, unreviewable power over government agencies.

To arrive at this reading of Article II, which created the executive branch, Calabresi and Rhodes began counterintuitively with Article III, which established the federal judiciary. Article III says that the judicial power in the United States "shall be vested" in certain federal courts. Drawing from a well-known article by Akhil Reed Amar, the authors argue that the best reading of the Vesting Clause is that it requires some federal court to hear certain categories of cases, listed in the article. This is called the theory of mandatory jurisdiction.

Article II has a similar structure and language to Article III. It, too, begins with a Vesting Clause, that the executive power "shall be vested" in the president. If you buy the argument that the Vesting Clause in Article III gives certain exclusive authority to the courts, Calabresi and Rhodes believe, you should also buy the argument that the similar clause in Article II grants certain exclusive authority to the president.

Other textual similarities and contrasts support the same conclusion, they say. Importantly, Article II vests the executive power in a president, as a single unit, in contrast to Article III, which divides power among different levels of federal courts and makes explicit reference to Congressional checks. The agencies that carry out executive power can be seen as contained only within that single unitary executive, the president.

Detractors of the unitary executive thesis have pointed to the evolution of the Constitution that occurred during the New Deal. The federal bureaucracy swelled during this time, with agencies taking care of more law and more aspects of American government than the framers could have ever imagined. But, Calabresi and Rhodes say, if you want to argue that the New Deal diluted the "vesting" done by Article II in the president, you must also argue that it diluted the power "vested" in the courts. That's an argument liberal legal scholars might be loathe to make.

The Calabresi and Rhodes thesis responded to a series of investigations led by indepedent counsels, who, under a federal law that has since lapsed, operated from within the executive branch. Conservative scholars (and judicial nominees) have recently turned to the theory to insulate presidential authority from checks made by the other
branches of government. The theory of a unitary executive, today, has tended to become - fairly or not - synonymous with theories of unilateral executive action. It may be much more difficult to justify those arguments, as Calabresi and Rhodes did theirs, on the basis of neat textual symmetry. Havard Law Review, Vol. 105, No. 6, (April, 1992).

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