Unitary Executive Theory - Criticism of The Strong Version of The Theory

Criticism of The Strong Version of The Theory

Loyola Law School Professors Karl Manheim and Allan Ides write that “the separation among the branches is not and never was intended to be airtight,” and they point to the President’s veto power as an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power being exercised by the executive branch, as necessary elements of the administrative state, but they contend that ultimately all administrative power belongs to Congress rather than the President, and the only true "executive" powers are those explicitly described in the Constitution. In this understanding, Manheim and Ides follow in the footsteps of Lessig and Sunstein.

Professors David Barron and Martin Lederman have also criticized the strong version of the Unitary Executive Theory. They acknowledge that there is a compelling case for a unitary executive within the armed forces. However, they argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and they argue that the Commander in Chief Clause would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the President.

Contrary to claims of some authors, the first administration to make explicit reference to the "Unitary Executive" was not that of President George W. Bush. For example, in 1987, Ronald Reagan issued a signing statement that declared: "If this provision were interpreted otherwise, so as to require the President to follow the orders of a subordinate, it would plainly constitute an unconstitutional infringement of the President's authority as head of a unitary executive branch."

The George W. Bush administration made the Unitary Executive Theory a common feature of signing statements. For example, Bush once wrote in a signing statement that he would, "construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." Critics acknowledge that part of the President's duty is to "interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies," but critics accused Bush of overstepping that duty by his perceived willingness to overrule U.S. courts.