Distinguishing the Scope of Executive Power From its Distribution:

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.