29 Pages Posted: 17 Nov 2008
Date Written: 2009
Calabresi and Yoo make three important contributions to the literature on separation of powers in their new book. First, they seek to rescue the unitary executive theory from the Bush Administration lawyers who have discredited the theory in the eyes of many by relying on it to support outlandish claims of presidential power that are unrelated to the unitary executive theory. Second, they make a persuasive case for the unitary executive theory by explaining why a president must have the power to remove executive branch officers and to control policy making in the executive branch. Third, they document the ways in which all forty-three of our presidents have demonstrated their beliefs in the theory by consistently acting in accordance with the theory.
In this review, I agree with most of the arguments that Calabresi and Yoo make, but I disagree with them on two points. First, I do not believe that the president has the power to "veto" the decision of an executive branch officer. I believe that his only recourse is to remove an officer with whom he disagrees. Second, I do not believe that the for cause limits on the president's removal powers that the Supreme Court has upheld interfere with the president's ability to control policy making in the executive branch.
I also make two other points. First, political limits on the removal power are often formidable and are socially beneficial as a means of rendering the president accountable to the electorate. Second, to the extent that the president's ability to control policy making by "independent agencies" is unduly impaired, the root of that problem lies in unconstitutional statutory limits on the president's appointment power rather than in the innocuous statutory limits on his removal power.
Keywords: unitary executive theory, presidential power, constitution, Vesting Clause, appointment power
JEL Classification: H11, K10, K23
Suggested Citation: Suggested Citation
Pierce, Richard J., Saving the Unitary Executive Theory from Those Who Would Distort and Abuse it: A Review of the Unitary Executive, by Steven G. Calabresi and Christopher Yoo (2009). University of Pennsylvania Journal of Constitutional Law, Forthcoming; GWU Legal Studies Research Paper No. 452; GWU Law School Public Law Research Paper No. 452. Available at SSRN: https://ssrn.com/abstract=1300939