The Unitary Executive During the Second Half-Century

135 Pages Posted: 27 Apr 2020

See all articles by Steven G. Calabresi

Steven G. Calabresi

Northwestern University - Pritzker School of Law

Christopher S. Yoo

University of Pennsylvania Carey Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Date Written: 2003

Abstract

Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others have suggested that the New Deal represented a constitutional moment that ratified major changes in the distribution of power within the federal government. To date, however, a complete assessment of the historical record has yet to appear.

This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1837 and 1889, beginning with the Administration of Martin Van Buren, ending with the first Administration of Grover Cleveland, and paying particular attention to Tenure of Office Act and the impeachment of Andrew Johnson. The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.

Keywords: Legal History, Separation of Powers, Administrative Law, Constitutional Law

Suggested Citation

Calabresi, Steven G. and Yoo, Christopher S., The Unitary Executive During the Second Half-Century (2003). Harvard Journal of Law and Public Policy, Vol. 26, p. 667, 2003, Available at SSRN: https://ssrn.com/abstract=3586614

Steven G. Calabresi

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Christopher S. Yoo (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

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