The Unitary Executive in the Modern Era, 1945-2004

131 Pages Posted: 15 Apr 2005 Last revised: 6 Nov 2014

Christopher S. Yoo

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

Steven G. Calabresi

Northwestern University - Pritzker School of Law

Anthony J. Colangelo

Southern Methodist University - Dedman School of Law

Abstract

Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the executive by committee used by the Articles of Confederation in favor of a unitary executive, in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor of a unitary executive is foreclosed by established practice. Others, led by Bruce Ackerman, claim that the New Deal represented a constitutional moment that ratified big changes in the distribution of power within the federal government. Still others argue that the added policymaking role of the modern administrative state means Congress ought to be able to impose greater limits on presidential control over the execution of the law. To date, however, a full assessment of the historical record has yet to appear.

This Article is part of a larger project offering a comprehensive chronicle of the battles between the president and Congress over control of the administration of federal law. It reviews the period between 1945 and 2004, paying particular attention to the Clinton impeachment and the lapse of the independent-counsel statute. The record shows that presidents from Harry S. Truman through George W. Bush consistently defended the unitariness of the executive branch, vitiating any claim that a custom of allowing congressional incursions on the unitary executive has emerged. In fact, the episodes discussed herein eloquently illustrate both the legal and the normative arguments supporting the unitary executive.

Keywords: executive, constitutional law, legal history, special counsels, independent agencies

JEL Classification: K3

Suggested Citation

Yoo, Christopher S. and Calabresi, Steven G. and Colangelo, Anthony J., The Unitary Executive in the Modern Era, 1945-2004. Iowa Law Review, Vol. 90, No. 2, p. 601, 2005; Vanderbilt Public Law Research Paper No. 04-12; Northwestern Public Law Research Paper No. 04-09. Available at SSRN: https://ssrn.com/abstract=690822

Christopher S. Yoo (Contact Author)

University of Pennsylvania 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)

Steven G. Calabresi

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Anthony J. Colangelo

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
2147682372 (Phone)

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