The Dangers Of The Unitary Executive Theory

by Anitra Pavlico

In April, the U.S. Senate Judiciary Committee voted favorably on a bill aimed at protecting Special Counsel Robert Mueller from being fired by the President without good cause. Some Republican senators doubted the legality of the bill, based on a one-judge dissent in a U.S. Supreme Court case decided in 1988, Morrison v. OlsonOne senator even considered himself “bound” by Justice Scalia’s dissent in that case. A dissent in a case in Supreme Court, or any court, is the losing argument and cannot bind anyone to follow its reasoning. Was Scalia’s opinion correct and the rest of the Supreme Court justices made a terrible mistake? Maybe shooting down the bill is what the framers of the Constitution–because this is in fact a constitutional question–would have wanted? Well, no. As constitutional scholar Victoria Nourse writes, “Cloaking themselves in Scalia’s lonely and incorrect dissenting opining, senators opposing the Integrity Act are attempting to upend the Constitution by embracing a dangerous constitutional argument contrived to render the President immune from scrutiny.”

The so-called unitary executive theory animates critics’ claims that the bill impermissibly curtails the President’s authority. Under this theory, any attempt to limit the President’s control over the executive branch is seen as unconstitutional. You may recall it rearing its head during George W. Bush’s presidency, as its adherents relied on it to justify the infamous “torture memo” drafted by White House counsel John Yoo, who argued, “The historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President. [. . .] Congress’s support for the President’s power suggests no limits on the Executive’s judgment whether to use military force in response to the national emergency.” Carried to its extreme, the unitary executive theory could potentially undermine a democracy.

The constitutional language in question reads: “The executive Power shall be vested in a President of the United States of America.” Scalia wrote in his Morrison dissent that “this does not mean some of the executive power, but all of the executive power.” Yet in Article I of the Constitution, the framers did use the word “all” to describe the legislative power vested in Congress. The word “all” does not, however, appear in the phrase regarding executive power. Most of the framers were skilled attorneys, and they must have appreciated the implications of excluding “all” in this context. They clearly did not intend for the President to hold all power to structure the executive branch of the government.

Scalia has tweaked the original language of the Constitution, for reasons purportedly to do with separation of powers. He writes:

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish – so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing . . . But this wolf comes as a wolf.

The Morrison case majority opinion asserted that “[t]he Act’s provision restricting the Attorney General’s power to remove the independent counsel to only those instances in which he can show ‘good cause,’ taken by itself, does not impermissibly interfere with the President’s exercise of his constitutionally appointed functions.” Although the exact legislation at issue in Morrison is no longer in effect, the “good cause” requirement still stands in the U.S. regulatory scheme and is no different from what the Integrity Act would require.

It is unclear what is so “wolf”-like about this safeguard. All quibbling over constitutional language or framers’ intent aside, it is a common legal adage that no man can be a judge in his own trial. Congress merely seeks to impose a good cause requirement on the President to explain why he is firing an independent counsel; it would not even forbid him from firing counsel. If the bill passes, Congress would further insure that the President does not arbitrarily dismiss the person who is prosecuting possible crimes stemming from the Russian interference in the 2016 election, even if the investigation hits uncomfortably close to home.

Nourse points out that there has always been functional overlap among the legislative, judicial, and executive branches. Otherwise, they would operate on parallel tracks and never be able to check one another:

Congress has extensive power to structure the Executive branch by creating agencies that allow the President to perform his duties. Tenure and removal limitations are perfectly “necessary and proper” means to further Congress’s duty to legislate for the general welfare. In the case of the Special Counsel, they are necessary because the President has a conflict of interest in the investigation and they are perfectly proper since they serve the purpose of public transparency.

It defies common sense that the drafters of the Constitution, working against the recent historical backdrop of a Declaration of Independence that complained of “absolute Despotism” in a king who “has refused his Assent to Laws,” “abolishing our most valuable Laws and altering fundamentally the Forms of our Governments,” would then turn around and prescribe a system of government in which the President could essentially do whatever he wanted without answering for his actions.

The Supreme Court has repeatedly struck down claims that the chief executive has absolute power. In its landmark decision in Youngstown Sheet & Tube Co. v. Sawyer, the Court held that executive and legislative powers must be balanced against each other, with neither one able to impose itself in an unchecked fashion. Justice Jackson’s influential concurring opinion noted that “men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” In the circumstances surrounding the Youngstown case, President Truman at least professed to be acting in the best interests of the nation when he sought to seize steel mills to support the Korean War effort. It is unclear what national interests would be served by allowing the President to dismiss the Special Counsel without giving a good reason. Avoidance of embarrassment for the President or even potential prosecution in not in the best interests of anyone except the President and those in his immediate social circle.

As James Madison wrote in Federalist No. 51 with regard to the separation of powers, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” He added that the government not only has to control the governed–it has to control itself. The desire for re-election is a realistic check on government officials’ ambition–the people in the “place” itself get to decide whether their officials’ ambitions have been self-serving or have instead been aimed at serving their constituents. The motivation of the senators opposing the Integrity Act is doubly suspect: They do not seem to be acting in their own best interests as members of Congress, as they would effectively reduce their own branch’s influence, and they do not appear to be acting in the best interests of their constituents, either. It does not serve American citizens well to refuse to investigate election interference to the fullest extent possible–especially as all signs indicate it will happen again this election season.

Senate committee meetings are not generally exciting fare. But wouldn’t it be more interesting if voters realized that some of their senators were swayed or even considered themselves “bound” by a lonely dissent from 30 years ago, a dissent that puts words into the Constitution that are not there? Elected officials take an oath to uphold the Constitution and the laws of the United States, but a dissent is not law, and numerous other Supreme Court opinions support the notion that requiring the President to offer “good cause” for dismissing an independent counsel is constitutional.

It is not difficult to imagine disturbing implications of the unitary executive theory. Consider, purely hypothetically, a president who gradually becomes mentally or psychologically unbalanced throughout the course of his term, or reveals the extent of such deficiencies. Say, for example, that this leader threatens other nations with nuclear war and carries out inhumane domestic policies such as separating toddlers from their parents for extended periods. Then consider that this leader could remove at will anyone who has been appointed to investigate potential illegalities. This is a slippery slope that could lead to totalitarianism. We have to consider whether we would accept this, if not now, then perhaps in the future if a dangerous precedent is set during the current presidency. By passing the Integrity Act, Congress can insure that the President follows the law, at least in this narrow instance.