Unitary, Executive, or Both?

The Unitary Executive: Presidential Power from Washington to Bush. Steven G. Calabresi & Christopher S. Yoo. Yale, 2008. Pp vii, 544.

America’s Chief Executive creates a conundrum for legal scholars. Presidents today sit at the center of the political universe. They have become responsible for national security and economic growth, they are the chiefs of their political parties, and their proposals set the legislative agenda for Congress. With the military power of the United States behind them, presidents were known during the Cold War as the leaders of the free world. Our 24-hour news cycle hangs on their every word and speculates on their family lives, their medical conditions, their psychology, and even their favorite breeds of dog.

The transition from the Bush to the Obama administration has only highlighted the importance of the person who occupies the office. Both men hold individual, and different, policies for responding to the terrorist attacks of September 11, 2001. President George W. Bush invoked his constitutional powers, though often supported by congressional approval, to launch wars in Afghanistan and Iraq, detain al Qaeda and Taliban members as enemy combatants subject to military trials, and use aggressive interrogation and electronic surveillance measures against terrorists. President Barack Obama has invoked his constitutional authority to order the detention facility at the US Naval Base at Guantanamo Bay, Cuba closed, suspend military commission trials, and limit the interrogation of terrorists. Differences in policies also occur in areas as diverse as global warming, antiballistic missile defenses, national health care, and judicial appointments. The preferences of the person who occupies the Oval Office significantly influence policies in almost every area under the sun.

For legal scholars, the problem created by this state of affairs is that the central importance of the modern Presidency seems to contradict the Constitution’s text. The Constitution undeniably enumerates more powers for Congress than the president. Congress has the authority to tax, spend, and regulate interstate commerce, which provides it with the power to enact domestic legislation. In contrast, Article II of the Constitution seems to vest the president with a paltry sum of powers. Scholars, such as Arthur Schlesinger, Jr, coined the classic phrase the “imperial presidency” to describe the idea that over time the executive branch has assumed powers that the Constitution directs to others. According to this view, the Presidency has few inherent constitutional powers, but rather exists to carry out the laws passed by Congress. Even in foreign affairs and national security, the legislature should play the leading role in defining national policy. The Presidency’s growth into the dominant political institution it is today may be the product of changes in the national political system or external pressures, but that makes it no more legitimate. Steven G. Calabresi and Christopher S. Yoo (no relation, as far as I know) have joined the many scholars who have tried to solve this problem.