The Unitary Executive in the Age of American Authoritarianism

Abstract

While the Framers were obsessed with the need to shape the Constitution in order to avoid tyranny, it is only in recent years that we have become especially conscious of the serious and immediate threats of authoritarianism to our constitutional democracy. From a constitutional perspective, central to this concern is the longstanding debate over the so-called unitary executive. On one side of the debate have been the “Strong Unitarians,” who construe Article II as a grant of “inherent” powers to the presidency, making our nation ripe for dangerous expansion of presidential power. On the other side of the debate are the “Anti-Unitarians,” who argue that Article II must be construed—in a manner wholly inconsistent with the plain meaning of its text—to enable Congress to remove significant categories of executive power from the president’s control.

In this article, we first explain why we categorically reject both existing approaches as inconsistent with constitutional text and democratic values. We then urge replacement of both approaches with what we call the “Limited Unitary Executive” theory. Under this approach, we fulfill clear textual and democratic directives by leaving executive power in the hands of the president. At the same time, we construe the grants of executive authority delineated in Article II to confine presidential power in a manner that significantly reduces the dangers of presidential authoritarianism.

Keywords: Constitutional law, Separation of powers, Presidential power, Unitarian executive, Nondelegation doctrine, Authoritarianism

JEL Classification: K10