Taking the Measure: The Presidency of George W. Bush

Chapter 4. The Unitary Executive Theory and the Bush Legacy

chaPTer 4 The unitary executive Theory and the Bush Legacy Mark J. Rozell and Mitchel A. Sollenberger a key part of the George W. Bush legacy will be his administration’s attempts to vastly expand the powers of the presidency. Under the “Unitary Executive” theory that espouses the inherent authority of the president to act unilaterally in a number of areas, the president adopted broad-reaching and in some cases unprecedented efforts to expand his powers. We address two critical areas in which President Bush made farreaching claims of independent presidential powers: executive privilege and appointments of executive branch czars. To establish the framework, we begin with a brief description of the controversial unitary executive theory. Advocates of the unitary executive theory contend that “the president, given ‘the executive power’ under the Constitution, has virtually all of that power, unchecked by Congress or the courts, especially in critical realms of authority.” This theory has its roots in the works of many forceful advocates of expanded presidential power in the academic and political worlds. In 1960, Richard E. Neustadt suggested that the office of the chief executive is essentially divorced from the Constitution and that “presidential power is the power to persuade.” This viewpoint directly countered what had been the dominant view of such presidential scholars as Edward S. Corwin who believed that presidents could only exercise powers that were outlined in the Constitution.1 Neustadt thought that such a narrow view did not adequately explain the many dimensions of actual presidential power. The unitary Executive Theory and the Bush Legacy • 37 After a period of aggressive assertion of presidential power by Lyndon B. Johnson and Richard M. Nixon, some scholars began to rethink the Neustadt model. In The Imperial Presidency, Arthur M. Schlesinger Jr. argued that the president had gained more power than the Constitution provided, but, he added, “The answer to the runaway Presidency is not the messenger-boy Presidency. . . . We need a strong Presidency—but a strong Presidency within the Constitution.”2 Despite pushing against an imperial presidency, Schlesinger nonetheless left open the intellectual justifications that would later be advanced by unitary executive advocates. Scholars who defend a unitary model contend that they believe in a constitutional-based strong presidency. The problem is that Article II of the Constitution, according to unitary advocates, does not limit executive power but instead expands it indefinitely through the use of the Vesting, Take Care, Oath, and Commander in Chief clauses. In The Unitary Executive, law professors Stephen Calabresi and Christopher Yoo, leading proponents of more assertive chief executives, contend that “all of our nation’s presidents have believed in the theory of the unitary executive.” In fact, they say that the “Constitution gives presidents the power to control their subordinates by vesting all of the executive power in one, and only one, person: the president of the United States.” “The executive branch’s repeated and persistent opposition to any limits on the president’s power to control the execution of federal law forecloses,” according to them, “the argument that a ‘gloss’ on the meaning of the words ‘the executive Power’ has emerged, allowing Congress to create a headless fourth branch of government wielding executive power outside presidential control.”3 The Bush administration adopted the unitary executive model and acted in a purposeful and even aggressive way to expand presidential powers. Revealing comments by Vice Pres. Richard Cheney—often seen as the leading architect of the administration’s efforts in this regard—early in 2002 lend support to this understanding of the Bush presidency. Cheney argued that the administration would be dedicated to restoring the balance of powers in the system of separated powers to ensure that Bush would be able to fully exercise his rightful authority. He proceeded to assert that the modern era has been characterized by legislative encroachments on executive powers combined with presidential acquiescence in the face of such congressional power grabs.4 The unitary executive theory provided the rationale for President Bush’s agenda to defend and expand presidential powers in a variety of areas as well as to protect the executive branch from what he and Vice President Cheney perceived as an overly intrusive Congress. And it is no coincidence that the vice president himself was a central character in a number of the most conten- 38 • rozell and sollenberger tious efforts by the administration to achieve these goals. We now examine two key...