Friday, January 09, 2009

"Unitary Executive" and the Constitution

Los Angeles Daily Journal, Jan. 8, 2009, at 6

Unitary executive" is one of the most misused phrases of the past eight years ("Obama Faces Key Tests on Executive Power," Dec. 26, 2008). For example, recently, Vice President-elect Joseph Biden got it wrong by defining it as "meaning that in time of war essentially all power, you know, goes to the executive." This is especially bad given the fact that Biden fancies himself a constitutional scholar; periodically teaching a seminar on the subject at Widener School of Law.

Justice Antonin Scalia's famous dissent in Morrison v. Olson, 487 U.S. 654 (1988), is probably the best interpretation of the theory, which holds that executive power lies with the president, and that no "person whose actions are not fully with the supervision and control" of the president can seize it. The issue in Morrison was the law that provided for the appointment of an independent counsel. More specifically, the court faced the question of whether, via a statute, Congress can create an executive office that is not under the direct control of the president. Scalia was vindicated on this subject when Congress refused to renew the statute after the Clinton-Lewinsky fiasco and allegations of overreaching by Kenneth Starr. Or as Justice Samuel Alito pointed out in his confirmation hearings, "all federal executive power is vested by the Constitution in the president." Insofar as some may think that the "unitary executive" theory stands for the proposition that the president is above constitutionally enacted laws, as I think Biden does (at least during wartime), they are certainly in the minority.

The first line of Article II of the U.S. Constitution states, "The executive power shall be vested in a President of the United States of America." Does "the executive power" mean "all" of the executive power or just "some"? Compare that with the more limiting language of Article I: "All legislative powers herein granted shall be vested in a Congress of the United States." There is a difference, and it appears the Founding Fathers knew how to go about limiting powers when they wanted to do so.

To the extent that Congress wants to limit this power, it will need a constitutional amendment.