Co-blogger Jonathan Adler, citing an important post by Cass Sunstein, focuses on a too-often ignored aspect of the debate over the "unitary executive:" the distinction between the scope of executive power and its distribution. The idea of the unitary executive is simply that whatever power the executive branch has should be concentrated in the hands of the president. There can be no executive officials (such as the independent counsel) who are not subject to presidential control and removal. As Article II of the Constitution states, "the executive power [of the federal government] shall be vested in a President of the United States." It does not grant any executive authority to officials not under presidential control.
This is perfectly consistent with simultaneously believing that the scope of executive power is relatively narrow, and that the president has no authority to ignore laws enacted by Congress, including those that constrain many military and foreign policy decisions. Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X. As I explained in a debate with John Yoo and Doug Kmiec earlier this year, Congress has broad powers to regulate the president's wartime activities in his capacity as Commander in Chief of the military under its Article I, Section 8, Clause 14 authority to "make rules for the Government and regulation of the land and naval Forces," and its authority to attach conditions to military appropriations (Yoo actually agreed with me on the latter point, though definitely not on the former).
Constraining presidential authority in this way does not go against the theory of the unitary executive. What Congress cannot do without contradicting the theory is pass a law allocating authority to decide whether to do X to executive officials who are exempted from presidential control and removal.
As Cass Sunstein puts it:
Those who believe in a unitary executive need not think that the president can defy the will of Congress, or torture people, or make war on his own. The principle of a "unitary" executive involves only one thing: The president's hierarchical control over implementation ("execution") of federal law.
Justice Alito explained it even more clearly at his confirmation hearing last year:
The question of the unitary executive . . . does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive.
As Alito explains, one can consistently support a unitary executive with a narrow range of powers (which is roughly my position). One can also consistently support a unitary executive with very broad, almost unlimited powers (John Yoo's view, and also that of the Bush Administration). You could - also consistently - endorse a nonunitary executive with broad powers. The latter was the position of liberal Democrats during the New Deal and for many years afterwards, when they endorsed both broad executive power and the creation of numerous executive agencies outside presidential control.
The Bush Administration's (in my view ill-advised) advocacy of both broad executive power and unitariness should should not be allowed to obscure the distinction between the two. Indeed, the concentration of executive power in the hands of the president might actually be easier to accept for many people if that power were relatively narrow rather than almost limitlessly broad.
Related Posts (on one page):
- Distinguishing the Scope of Executive Power From its Distribution:
- Defining the Unitary Executive:
Any such words would be superfluous, because the text already allocates "THE executive power" to the president, while not providing for ANY other executive power in the hands of someone else.
Just because the President exercises the executive power, does not mean that others cannot also exercise the executive power. Without the word only, there is ambiguity. Also, without the word all, one could think that "the executive power" might refer to especially those executive powers explicitly mentioned, but maybe not others that are implied. For example, we think that "the executive power" means that the President can remove those he appoints without Senate approval. But nowhere in the Constitution does it say that.
I don't see how anyone could deny that, if the framers intended to create a unitary executive, it would be better to include the words "all" and "only." Then there would be no ambiguity whatsoever. Without the words only, one can imagine the Constitution as vesting executive power in the President non-exclusively. Also, one can imagine the word "the" does not mean the same thing as "all the." Instead, the refers to a specific thing. In this case, the specific thing that the Constitution might be referring to are the powers that are explicitly laid out in Article II. Which do not include, by the way, the power to fire officers who have to be confirmed by Congress.
The bottom-line, you are completely wrong about this. The words "all" and "only" are not extraneous, but instead would eliminate ambiguity.
Also, as a side note, if you are going to use quotes, I think you should use them accurately in this context. The Constitution says "The executive Power" not "THE executive power." I am fine with you not capitalizing the word power, but I have a problem with you using all caps. Isn't what the Constitution actually says good enough for you?
"The bottom-line, you are completely wrong about this
. . . . I am fine with you not capitalizing the word power, but I have a problem with you using all caps. Isn't what the Constitution actually says good enough for you?"
"Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter."
Seriously- the comment policy is right there under where you are typing. I also feel like someone with the Law Review disease from Professor Kerr's post escaped and made it over here to this post.
Not very "impressive" at all. Your hyperbole makes me want to reject your position out of hand just because you are so strident about it. Probably not your intended result, huh?
-Ryan
First of all, I have no desire to persuade you or anyone else who is emotionally driven. The facts and the truth speak for themselves.
Second, it is one thing to reject picky law review editors. It is another to misquote the Constitution, which is a sacred document. Especially when the way you are misquoting it has important implications. (Not capitalizing the P in the phrase "executive Power" probably does not have any implications, since the capital P is likely merely stylistic. Hence the reason I don't mind if someone quotes the Constitution without capitalizing the P in Power.) If the word "The" was in bold or in all caps, it would change the meaning of Article II.
Unlike silly law review articles, I do take the Constitution of the United States seriously.
If you take the Constitution seriously then read it and take the words as they appear. Lets take Article I:
and apply your formula:
So if I am reading the Constitution using the Mr. Impressivist school of interpretation any legislative powers not specifically granted by the constitution reside in the President or the Supreme Court. So the fact that the Constitution forbids Congress from making any law restricting freedom of the press or religion, implies that legislative function devolves to the President or the Supreme court, or some other "implied" legislative body.
That's ridiculous you say? Exactly.
In fact, if you wanted to unambigiously vest all legislative power in Congress alone, it would be useful to use the word only in Article I.
In fact, a less ridiculous example of vesting some legislative power in bodies other than Congress would be giving executive branch agencies the power to make regulations that have the force of law. Also, we wouldn't give the Supreme Court the power to write the Federal Rules of Civil Procedure which have the force of law. (Yes, you can be deprived of life, liberty, or property if you defy the FRCP in a circumstance where they apply.)
Ridiculous you say? Well, it is the system we have now. It is not the case that all legislative power is vested in Congress only, rather, it is the case that all legislative power is vested in Congress.
Kazinski, thank you for making my argument for me, albeit unintentionally.
In short, when people want to deliberately misread something, one can't stop them.
Wills are a significantly different context than the Constitution. Generally, ownership has historically been conceptualized as being exclusive (in fact, the idea that ownership must be exclusive was used as one of many pretexts to take land away from Native Americans), but power can easily and has historically always overlapped between the different branches of government. The interpretation of a grant to X as exclusive is not determined by the language "Blackacre to X" but rather by our traditional concept of property as being exclusively. It would in fact be less ambigious, as a matter of language and logic, to say "Blackacre to X only."
One could easily imagine a hypothetical circumstance in which X could either represent himself or a collective entity where language "Blackacre to X" was ambigious. The phrase is only rendered unambigious with reference to history and tradition, not as a matter of language and logic.
There was no precise seperation of powers in England at the time of the revolution. Unlike with property, there are not the same history and traditions regarding government power that lead one to unambigiously assume exclusivity.
Actually, "the constitution that we have" apparently refers to what you want. Because as a matter of language and logic, without the word "only" there is objective ambiguity in the constitution that we actually have.
Deal with it.
I agree that the concept "without exception" is necessary, as a matter of logic, to render the phrase unambigious. However, I think the word "only" is a more concise expression of that concept and thus preferable.
Here is how you would write it.
"All the executive power shall be vested in a President of the United States of America only."
Instead of
"The executive power shall be vested in a President of the United States of America"
But, your suggested alternative works as well.
"All the executive power, without exception, shall be vested in a President of the United States of America."
In contrast, you are right that this alternative is logically inadequate:
"All the executive power shall be vested in a President of the United States of America."
It is not sophistry, but rather logic, that leads one to conclude that the constitution as written is objectively ambigious. I said from the very beginning that you need the words "all" and "only" to be unambigious. Your response does not reveal sophistry, but merely confirms what I said was (and what objectively is) logically required from the very beginning to render the statement unambigious with respect to whether we are to have a unitary executive or not.
for reminding me why I don't argue with my three year old.
Because your three year old would win?
I will take your failure to make a substantive argument that actually addresses what I said as an admission that you do not in fact have anything to substantive to say.
That you are slow is demonstrated by your failure to recognize that Ilya did not actually make a logically decisive argument. Ilya makes much of the fact that the Constitution nowhere grants executive authority to anyone other than the President. But, what does he make of the fact that it nowhere grants the President to fire executive officers who are confirmed by the Senate?
The Constitution does not say a lot of things.
The reason Ilya has not responded is because he is simply wrong and he knows it. The Constitution is objectively ambigious. Anyone with a brain, and Ilya has a brain, must acknowledge that fact. Ilya is merely advancing his favored interpretation of the Constitution, not one that is logically required.
If a document that is supposed to allocate the total sum of executive power gives "the executive power" to one entity and doesn't give any executive authority to anyone else, I think it's pretty obvious that that entity is supposed to have ALL the executive power.
Also, one can imagine the word "the" does not mean the same thing as "all the." Instead, the refers to a specific thing. In this case, the specific thing that the Constitution might be referring to are the powers that are explicitly laid out in Article II. Which do not include, by the way, the power to fire officers who have to be confirmed by Congress.
The obvious flaw in this argument is that there is NO other executive power laid out anywhere else in the Constitution. Thus, the powers listed in Article II (and anything tht can be "implied" form them) are all the executive powers there are.
Also, as a side note, if you are going to use quotes, I think you should use them accurately in this context. The Constitution says "The executive Power" not "THE executive power."
As a side note, I think it's pretty obvious that I was capitalizing THE for emphasis, not in order to distort a text that I had already quoted (without caps) in the original post. Yes, if this were a formal article rather than a blog post comment, I would have put in "(emphasis added)" at the end. But it isn't, and I think most readers understand the conventions of the genre.
The reason Ilya has not responded is because he is simply wrong and he knows it.
This is the kind of argument that will definitely win you a lot of converts. Consider the alternative possibilities that I didn't respond because 1) I was doing something more important, 2) I doubted that you were worth responding to, or 3) I simply hadn't bothered to read your comment until now.
Section 8 of Article 1 sets out a laundry list of powers, for instance:
"The Congress shall have Power ...To coin Money"
None of these powers include words like "all" or "only". Yet, the power to coin money rests only with Congress. The executive could not constitutionally issue a rival coin. Any ambiguity is what "coin" means, not who has the power. Likewise, the ambiguity is what is executive power, not who exercises it.
Logically speaking of course.
If the Constitution is supposed to allocate the total sum oe executive power, as a logical matter, it may do so either explicitly or implicitly. To say that the Constitution in fact allocates all power to one entity (in effect denying that it allocates such power to Congress by implication) is entirely conclusory. As Mr. Somin later notes, he accepts that we must have implications within the Constitution, even when they are not explicitly called for, as when we decide that the President has the power to fire executive officials whose appointment was consented to by the Senate without going back to the Senate for approval. Having accepted, as he must, the legitimacy of implications from Constitutional text and structure, Mr. Somin must give some reason why we should not think that, for example, Congress does not have some amount of executive authority by implication in ensuring that the President does not violate the law instead of faithfully executing it, or some other sort of executive authority. After all, it is perfectly logically consistent to think that the point of assigning executive authority to the President without using the word only is to ensure that it exists there generally and for the most part, but also non-exclusively. So, Mr. Somin is going to have to come up with some sort of theory about why some implications are acceptable and others are unacceptable. But not only that, if Mr. Somin wants to prove that the Constitution is unambigious on this point, rather than merely inventing a permissable but not logically required theory of interpretation, he must show how other all other logically possible interpretations conflict with the text. This he has not and cannot do.
There is something else that Mr. Somin might have meant by this. Simply that the word "all" is not logically required if the word "only" is used. I agree with this, even though I think it is more aesthetically pleasing and easier to read if the word "all" is used along with the word "only."
But it should be noted that if this is Mr. Somin's meaning, while sensible, it does not address the portion of my text that he quoted. He quoted the following: "Just because the President exercises the executive power, does not mean that others cannot also exercise the executive power." Clearly, the statement he quoted goes to the necessity of using the word "only" if one wants to unambigiously create a unitary executive, rather than the word "all" which can logically (but aesthetically shouldn't be) discarded in the presence of "only."
This does not address the possibility that executive power can be implied elsewhere in the Constitution even when it is not explicitly mentioned. Just as the power to fire officers who required confirmed by the Senate is also implied. Again, Mr. Somin needs a theory of what implications are permissable and which are not permissable. But not only that, he also needs to show that all other theories lead to logical contradiction with the text of the Constitution.
I cannot see how Mr. Somin says that this is an "obvious flaw." Only by foisting upon to the reader an implicit theory of when implications are permissable or not and furthermore incorrectly insisting that all other theories lead to contradiction could one say that my point has a flaw, much less an obvious one.
Assume the framers intended a unitary executive. All of this logically existent ambiguity could have been avoided with the use of the word "only" (preferably with the word "all" for emphasis). If they had said the executive power shall be vested in the President only, there would be no ambiguity. For Mr. Somin to claim that this word is "superflous" as Mr. Somin did originally is to defy all logic and reason. Objectively speaking, without the word "only" it is logically ambigious whether the Constitution establishes a unitary executive or not.
Overall, Mr. Somin's response has been both feeble and inadequate. Perhaps because of time constraints. However, it should be noted that he clearly made the sort of move that I fully support. Faced with a dogmatic assertion concerning the reason he did not respond to my obviously correct argument, Mr. Somin put forth 3 different logical possibilities, thereby demonstrating that my theory of why he did not respond was not logically exclusive. If he would make the same sort of move on this issue, he would see why the word "only" (or a conceptually-like phrase) would be necessary if the framers had wanted to establish a unitary executive unambigiously.
Hint: there's no ambiguity in "the." "The" doesn't mean "some" or "part of."
And you demonstrate in three sentences that you are like the strawman in the Wizard of Oz. If you do not take my perfectly clear and objectively correct argument seriously, that says more about you than it does about the argument.
Unlike you, I won't hint. The article "the" refers to a specific thing. In this case "the" could specifically refer to at least (1) only the executive powers explicitly mentioned in Article I or (2) the executive powers explicitly mentioned or "fairly" implied by Article I (2) executive power generally or (3) all executive power.
Counterfactually, even if "the" without ambiguity referred to (3), you would need "only" or "without exception" to establish exclusivity.
The End.
Mr. Nieporent,
And you demonstrate in three sentences that you are like the strawman in the Wizard of Oz. If you do not take my perfectly clear and objectively correct argument seriously, that says more about you than it does about the argument.
Unlike you, I won't hint. The article "the" refers to a specific thing. In this case "the" could specifically refer to at least (1) only the executive powers explicitly mentioned in Article I or (2) the executive powers explicitly mentioned or "fairly" implied by Article I (3) executive power generally or (4) all executive power.
Counterfactually, even if "the" without ambiguity referred to (4), you would need "only" or "without exception" to establish exclusivity.
Both the concept "all" and "only" are logically necessary. If you have "all" without "only" then there is nothing stopping the other branches from exercising executive power concurrently in some instances. If you have "only" without "all" then there is nothing stopping other branches from exercising executive powers not assigned to the President.
The End.
But I have a question. Many of the alphabet soup agencies are quasijudicial/regulatory and not particularly active in their own right. Do you think it's unconstitutional for these agencies to have commissioners with terms?
I could also ask, what about Mr Cheney, but I won't!
It depends on what kind of authority they have. If they wield executive or legislative power, then yes. If their power is purely advisory, then no.
It is one thing to suggest that an entity that has been given some executive authority explicitly, might also get some implied authority (e.g. - b/c the implied authority is needed to implement the explicitly granted powers). It is wholly different to suggest that an entity can get implied executive power even though none was granted explicitly. The latter is both illogical and contradicted by the text's explicit assignement "the executive power" to the president.