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 Joseph V. Hughes Jr. and Holly O. Hughes Series
on the Presidency and Leadership

James P. Pfiffner, General Editor

Series Editorial Board

Peri Arnold
H. W. Brands Jr.
George C. Edwards III
Fred I. Greenstein
Erwin C. Hargrove
Charles O. Jones
Martha Joynt Kumar
Roger Porter
Steven J. Wayne

A list of all titles in this series is available at the end of the book.
The Unitary Executive
and the
Modern Presidency
Edited by Ryan J. Barilleaux and Christopher S. Kelley

Texas A&M University Press

college station
 Copyright © 2010
by Texas A&M University Press
Manufactured in the United States of America
All rights reserved
First edition

This paper meets the requirements

of ANSI/NISO Z39.48-1992
(Permanence of Paper).
Binding materials have been chosen for durability.

L ibr a ry of Con g re s s Cata lo g i n g -i n -P u bl i cat i on Data

The unitary executive and the modern presidency / edited by Ryan J. Barilleaux
and Christopher S. Kelley. — 1st ed.
p. cm. — (Joseph V. Hughes Jr. and Holly O. Hughes series on
the presidency and leadership)
Includes index.
ISBN-13: 978-1-60344-173-5 (cloth : alk. paper)
ISBN-10: 1-60344-173-5 (cloth : alk. paper)
ISBN-13: 978-1-60344-190-2 (pbk. : alk. paper)
ISBN-10: 1-60344-190-5 (pbk. : alk. paper)
1. Executive power—United States. 2. Executive-legislative relations—United States.
3. United States—Politics and government—20th century. 4. United States—Politics
and government—21st century. I. Barilleaux, Ryan J., 1957– II. Kelley, Christopher S.,
1964– III. Series: Presidency and leadership (Unnumbered)
JK516.U54 2010
352.230973—dc22
2009047682
 k
To the memory of my brother,
Ira Barilleaux Jr.
—RJB

To my daughters,
Megan & Zoe,
who are boundless sources
of inspiration.
—CSK
 C O N te N t S

Preface and Acknowledgments ix

Introduction: What Is the Unitary Executive?

Ryan J. Barilleaux and Christopher S. Kelley 1

Part I. An Overview of the Unitary Executive

The Unitary Executive: Ideology versus the Constitution

Louis Fisher 17
Executive Unilateralism in the Ford and Carter Presidencies
Ryan J. Barilleaux and David Zellers 41
The Unitary Executive and Review of Agency Rulemaking
Melanie Marlowe 77
The Unitary Executive and the Clinton Administration
Christopher S. Kelley 107

Part II. The Unitary Executive and the

George W. Bush Presidency

Foundations of the Unitary Executive of George W. Bush

Michael A. Genovese 125
The Unitary Executive and Secrecy in the Bush Presidency:
The Case of the Energy Task Force Controversy
Mitchel A. Sollenberger and Mark J. Rozell 145
Warrantless Surveillance and the Warrantless Presidency
Richard M. Pious 163
Aiding and Abetting: Congressional Complicity in the Rise
of the Unitary Executive
Bryan W. Marshall and Patrick J. Haney 188
 viii   : Contents

Part III. Conclusion

Going Forward: The Unitary Executive, Presidential Power,

and the Twenty-first Century Presidency
Ryan J. Barilleaux and Christopher S. Kelley 219

Contributors 231
Index 233
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 PReFAce AND AcKNOWLeDGmeNtS

This book is the product of a panel convened on the titular subject at the
annual meeting of the American Political Science Association (APSA),
held in Philadelphia in 2006. The theme of the convention? Power re-
considered.
Our panel, focusing on the unitary executive in a separated system, as-
sembled a group of political scientists to undertake a critical examination
of the theory of presidential power referred to so often by Pres. George W.
Bush. At that time—as is still largely the case today—the only substantive
research on the unitary executive theory was being done by legal scholars,
key among them Steven Calabresi, a former Justice Department attorney
in the Reagan administration and self-described “father of the unitary
executive.”
The legal scholars seemed interested only in discussions of whether
the unitary executive was indeed supported by the founding fathers at
the Federal Convention of 1787, as well as whether it was implemented
by nineteenth-century presidents. Furthermore, the popular conception
of the unitary executive theory seemed to focus only on its use by George
W. Bush, with little attention to the theory’s tenets or antecedents. Our
panel sought to explain what the theory was, how and why the Reagan
administration came to embrace it, and finally, how those presidents who
followed Reagan—including Bill Clinton, a Democrat—used it. We also
wanted to tie the theory to the larger literature on unilateral presidential
action, which has become a popular explanation of presidential power
following Watergate.
The panel discussion had strong attendance, and there was real excite-
ment about extending the discussion beyond the APSA convention and
including more individuals than those on the panel. Thus was born this
book.
Initially our hope was to include both political scientists and legal schol-
ars, especially those who have been defenders of the theory itself. We also
wanted to take a step forward to bridge the gap between political scientists
and legal scholars, who too often write and meet apart from one another.
 x   : Preface and Acknowledgments

Our view was that we all shared a common interest in building a greater
understanding of our subject—presidential power—and should strive to
work together rather than apart. We received tentative commitments by
some legal scholars, but they ultimately chose not to participate. Never-
theless, the contributors to this volume have produced what we believe
is an important examination of a controversial subject that addresses an
audience larger than just those scholars who already study the president’s
constitutional powers.
This project has truly been a group effort. All of the contributors
produced solid essays and did so in the time limits we established, and
they have been patient as we have moved the manuscript through the
production process. We also owe a debt of thanks to those who served on
the APSA panel but did not contribute an essay for this volume, including
Nancy Kassop, David Adler, and Robert Spitzer. In addition, we are grateful
for the support and patience of those at Texas A&M University Press—in
particular, Mary Lenn Dixon, editor-in-chief—and of Jim Pfiffner, the
Hughes Series editor, who enthusiastically took on this project. Finally,
we appreciate the comments of the anonymous reviewers for Texas A&M
University Press, whose careful reading of the manuscript made the final
product much stronger. Any errors in this book are entirely our own.
 Introduction

k
What Is the Unitary Executive?
ryan j. barilleaux and christopher s. kelley

The presidential nomination process of 2008 included questions and news

reports about an issue that has not been present during a presidential
election cycle since the 1976 cycle—questions and concerns involving the
limits of executive power.1 This is because the Bush administration vigor-
ously advanced a little understood theory of presidential power known
as the unitary executive.
In a meeting before the editorial board at the Boston Globe, Senator
Hillary Clinton (D-N.Y.) had this to say about the behavior of President
Bill Clinton: “I think you have to restore the checks and balances and the
separation of power, which means reining in the presidency.” Clinton also
said she “did not subscribe to the ‘unitary executive’ theory that argues the
Constitution prevents Congress from passing laws limiting the president’s
power over executive branch operations.”2

The Unitary Executive Goes Public

The unitary executive theory has become inextricably linked with the Bush
administration in large part because of the attention it received in 2006,
first during the Supreme Court confirmation hearings for Judge Samuel
Alito and then Bush’s frequent use of the signing statement for bills that
Congress approved and sent to the Oval Office.
The Alito confirmation hearings drew interest to the theory in large part
due to Judge Alito’s support for it. A Wall Street Journal article in January
2006 declared “Judge Alito’s View of the Presidency: Expansive Powers.”3
The article focused on Alito’s tenure in the Reagan administration Justice
Department and described how he was one of a number of conservative
 2 : BARiLLeAuX AND KeLLeY

legal scholars who developed a theory of presidential power designed to

help presidents protect their constitutional powers and to “go it alone”
when facing a recalcitrant Congress. The article also discussed how the
George W. Bush administration had been using the term repeatedly in a
variety of public documents, which included the signing statement, the
executive order, and the proclamation.
It was not until a few months later that the unitary executive theory
and the Bush administration would become intertwined, when a series of
media reports described how President Bush had been using the signing
statement to nullify hundreds of provisions of law—and using the unitary
executive as his defense. The media reports uncovered a pattern of his mak-
ing sweeping challenges to various provisions of legislation and defending
such actions under the auspices of a prerogative to “supervise the unitary
executive branch.” For example, in President Bush’s signing of the John War-
ner National Defense Authorization Act for fiscal year 2007, he challenged
sixteen different provisions “in a manner consistent with the President’s
constitutional authority to supervise the unitary executive branch.”4
The media could have made Bush’s use of the signing statement a learn-
ing opportunity for the general public, but it failed to do so. Instead, any
discussion of the unitary executive was either linked to the Bush admin-
istration and described in terms that either belittled it (e.g., “the so-called
unitary executive theory” or “the obscure theory of the unitary executive”)
or cast it in terms of an imperial presidency. The larger questions, such as
precisely what the theory was and where it originated, were left unexplored.
This leaves us with two different issues under consideration. First, what
is the nature of the theory as it was intended by its founders as well as its
understanding by Presidents Reagan, G. H. W. Bush, and Clinton? Second,
did the George W. Bush administration embrace the theory according to
its principles or did the administration use the theory as a disguise for
the execution of a different kind of presidential power? We briefly discuss
these points by way of introducing the contributions to this book.

Key Principles of the Unitary Executive

The unitary executive theory originated in the Reagan administration,

which came to office at a time when there was great suspicion directed
toward presidents and their exercise of power. Because of the Nixon ad-
ministration and Watergate, the Congress, the press, and the American
public perceived any unilateral move by the president as suspicious. The
 What Is the Unitary Executive? : 3

Reagan administration needed a constitutional explanation for those times

when it would act unilaterally, and thus it embraced the unitary executive
as a constitutional theory of presidential power.
The theory draws from three sources within Article II of the Constitu-
tion. The first is the “vesting” clause, which differs from similar clauses in
Articles I and III. In those two articles, the “vesting” power is divided or
qualified. In Article I, the “legislative” power exercised by the Congress is
limited to those powers listed within Article I. In Article III, the “judicial”
power is divided between the Supreme Court and inferior courts. Article
II simply says that the “executive power is granted to” the president. Thus,
“unitarians” (proponents of the unitary executive) take this vesting to
mean both the executive powers explicitly granted in Article II and so-
called “prerogative” powers, which exist outside the limits of Article II.
Furthermore, unitarians believe that the whole of executive power rests
with the president, which usually means unitarians resist the creation of
“independent” agencies or the use of executive power by individuals who
are not “executive officers.”
The second source of the theory is the “oath” clause of Article II, which
acts as a shield to protect presidents from enforcing laws they independently
determine to be unconstitutional. This particular clause is at the heart of
the controversy involving the Bush administration’s use of the signing
statement to challenge provisions of law that the president believes are
unconstitutional. While there were several contentions that George W.
Bush was making a novel claim of power, and considerable criticism of
how often Bush relied upon it after signing bills into law, the claim of the
presidential privilege to issue signing statements was not unique to the
forty-third president.
The privilege of making an independent judgment about the consti-
tutionality of law was written into the design of the Constitution. James
Madison argued in the Federalist Papers that the “several departments
being perfectly co-ordinate by the terms of their common commission,
none of them, it is evident, can pretend to an exclusive or superior right
of settling the boundaries between their respective powers.”5
Walter Dellinger, who led the Justice Department’s Office of Legal
Counsel (OLC) during the Clinton administration, echoed Madison in
a memorandum he wrote to White House counsel Abner Mikva in 1994:
“The President has enhanced responsibility to resist unconstitutional
provisions that encroach upon the constitutional power of the Presidency.”
Dellinger argued that absent a clear ruling by the Supreme Court, the
 4 : BARiLLeAuX AND KeLLeY

“oath” clause obligated the president to “shoulder the responsibility of

protecting the constitutional role of the presidency.”6
The third and final source to the unitary executive theory of power is
the “take care” clause, which requires the president, with assistance from
inferior executive branch officers, to ensure that the laws are faithfully
executed. Michael Herz argues that this clause ensures that presidents
will not only execute the law personally but also monitor the executive
branch agencies to ensure that the laws, as understood by the president,
are faithfully executed.7
Presidents are obligated to make sure that policy is executed as they wish
it to be because the president is the only politically accountable individual
in the executive branch. Elena Kagan, a former domestic policy advisor in
the Clinton administration, argues that “when Congress delegates discre-
tionary authority to an agency official, because that official is subordinate
to the President, it is so granting discretionary authority (unless otherwise
specified) to the President.”8
Because the Congress cannot monitor everything that happens inside
the executive branch, and because the give and take of the legislative
process often leaves important policy vague or undefined, the “take care”
clause gives presidents a great deal of room to pull important policy closer
to their own position.

The Origins of the Unitary Executive Theory

Some unitarians claim that the unitary executive theory was established at
Philadelphia in the summer of 1787 and put into practice in the George
Washington administration.9 However, the explicit defense of unilateral
presidential power dates to the Reagan administration in general and to
the OLC within the Reagan Justice Department specifically.
When the Reagan administration came to office in 1981, it was a low
point for presidential power. The lies exposed as a result of Vietnam and
then Watergate left little support for presidential power inside or outside
of government. In reaction to these events, Congress became aggressive
in asserting its powers, with executive authority cast into suspicion as
a remnant of the discredited “imperial presidency” associated with
Lyndon Johnson and Richard Nixon. This poisoned environment ruined
the presidencies of Gerald Ford and Jimmy Carter and would have likely
done the same to Ronald Reagan had he and his key advisors not come to
government with a plan to revive and bolster presidential power.
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