The Unitary Executive and the Modern Presidency

The Unitary Executive: Ideology versus the Constitution

The Unitary Executive k Ideology versus the Constitution louis฀fisher Scholars in recent decades have promoted the theory of the unitary executive .According to their constitutional model,all executive powers are centered in the president and thus subject to that executive’s direct command and control.1 The model not only concentrates power in the presidency but attempts to insulate the president from checks and constraints from other branches.As one study claimed,the development of the unitary executive from 1789 to 1945 “helped remake the institution of the presidency into the primary institution for mobilizing and implementing political will” and set the stage“for the imperial presidency that would dominate modern times.”2 John Yoo promotes a variation of this theory by describing the president as the “unitary, rational actor.”3 Although the framers looked to the president to provide responsibility, accountability, and unity, the model of the unitary executive was never adopted or intended, nor does it have any wholesale application today either in theory or practice. The Founders and Some Exceptions to Executive Power During congressional debate in 1789 on establishing the first three executive departments (Foreign Affairs, Treasury, and War), lawmakers agreed that each department would be headed by a secretary appointed by the president with the advice and consent of the Senate. In that manner Congress stated a preference for a single executive to head the departments over thecompetingmodelof amultimemberboard.4 Presidentialaccountability was underscored when Congress acknowledged that department heads could be removed by the president.5 However, recognizing the president’s freedom to remove department heads did not extend to every subordinate executive official. 18 : loUIs fIshEr Steven Calabresi and Christopher Yoo sum up the first half century of the federal government with these words: “no one could doubt the President’s constitutional power to control the entire executive branch (including the Treasury Department) and the actions of all of his subordinates .”6 The examples offered in this section and the next,on ministerial duties, demonstrate that the generalization Calabresi and Yoo offer is far too broad and fails to address important exceptions to the unitary model that are well known. autonomy฀for฀the฀comptroller When James Madison discussed the tenure of the comptroller of the Treasury, he said it was necessary “to consider the nature of this office.” Its properties were not “purely of an Executive nature,” he explained. “It seems to me that they partake of a Judiciary quality as well as Executive; perhaps the latter obtains in the greatest degree.” Because of the mixed nature of the office, “there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive branch of the Government.”7 Given the fact that the comptroller was just being created for the new Treasury Department, how did Madison know enough about the office to understand its duties and nature? The answer lies in the decision of the ContinentalCongressin1781tocreatethesuperintendentof finance,auditors ,and the comptroller. The latter official functioned as a quasi-judicial officer who was responsible for the settlement of public accounts and on all appeals “shall openly and publicly hear the parties, and his decision shall be conclusive.”8 Madison wanted to preserve the comptroller’s independence,even from the president. His concerns were written into law in 1795 when Congress made the comptroller’s decision on certain claims“final and conclusive.”9 Actions by the comptroller were eventually challenged in court as a violation of due process of law.The Murray’s Lessee case (1856) involved Samuel Swartwout, a collector of customs for the port of New York from 1830 to 1838. During that period he kept large amounts of revenue for personal speculation. After the government discovered shortages in his account, a “warrant of distress”was issued to recover the funds.Acting under an 1820 statute, the office of the first comptroller certified the condition of the account to the agent of the Treasury, who then issued the warrant against the delinquent officer. The statute authorized the marshal to execute the warrant by entering into the district of the officer to collect the necessary Ideology vs. the Constitution : 19 amount. The marshal could post notices in the town announcing the sale of the officer’s goods and property.10 Swartwout argued that the statute was unconstitutional because it allowed executive officers to discharge judicial duties. The Supreme Court admitted that the actions...