The Unitary Executive
Los Angeles Lawyer, September 2006
17 Pages Posted: 8 Nov 2006
Nearly every American President has claimed powers broader than those explicitly laid out in Article II of the Constitution. An early example is Thomas Jefferson's assertion of power to void 25 of 42 late judicial appointments by his predecessor. Other notable examples include President Lincoln's suspension of habeas corpus, Franklin Roosevelt's internment of Americans of Japanese ancestry, Truman's seizure of the nation's steel mills, Nixon's wiretappings, press injunctions, and assertions of executive privilege; all were without congressional authority.
American constitutional history is rich with seminal cases involving these assertions of presidential power. Case names are sufficient to describe the resulting doctrines: Marbury v. Madison, Ex Parte Milligan, Korematsu v. United States, Youngstown v. Sawyer, New York Times v. United States, United States v. Nixon. In nearly every instance resulting in a judicial challenge, the federal courts have rebuked the claim. Even the decision in Korematsu upholding the challenged internment orders was eventually repudiated by all three branches of the government.
While the struggle over executive power goes back to the founding, it has gained urgency and potency during the administration of George W. Bush. President Bush has argued for a "unitary executive," in which all executive and administrative powers of the national government are focused in the President. Any effort, the theory goes, to limit executive power is unconstitutional, whether that occurs by imposing congressional or judicial oversight on executive actions or by creating so-called "independent agencies" with some degree of autonomy from Presidential control.
Before delving into President Bush's theory of executive power, however, it is instructive to review some basic separation of powers principles to better understand the breadth of his claims, as well as those of some of his recent predecessors in office.
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