Wednesday, September 9, 2009

Krent on Calabresi and Yoo's Unitary Executive

Harold J. Krent, Chicago-Kent College of Law, has posted The Sometimes Unitary Executive: Presidential Practice Throughout History, a review, also appearing in Constitutional Commentary 25 (2009), of Steven Calabresi and Christopher Yoo's The Unitary Executive: Presidential Power from Washington to Bush. Here is the abstract:
Steven Calabresi and Christopher Yoo's book The Unitary Executive: Presidential Power from Washington to Bush presents an excellent inquiry into the concept of a centralized executive throughout our history. The authors' goal is to persuade the reader that all presidents have viewed the power to supervise and remove subordinates as central to the very meaning of "executive power" in Article II of the Constitution. Without such an ability, presidents would be unable to execute the law effectively and place their stamp on the administration. The authors succeed in attaining that goal in part, for the historical record they portray reveals a long tradition of forceful assertion of presidential rights to control policy through close supervision of officers within the executive branch, especially through the removal power.

The book, however, is both over and underinclusive. The authors include many historical incidents that do not shed light on the unitary executive but rather on executive power more generally. The book is also underinclusive in failing to make a persuasive case for presidential authorities other than the removal power that fall within the unitary executive conception. In particular, the authors' focus on a presidential power to nullify acts of subordinates is misguided. They simply have not made the historical case for any such nullification power, and they have omitted analysis of significant aspects of presidential administration that would illuminate whether presidents consistently have asserted a nullification power. I conclude by examining one of those settings - when the executive branch is defending itself in litigation against suit filed by private entities and individuals - to ascertain how consistent the presidential practice has been. Presidents in a wide variety of cases have not hesitated to rely on a fragmented executive branch to dismiss claims. They have argued that cases should be dismissed because the wrong federal governmental entity was named and due to the fact that insufficient governmental entities were before the court to permit effective redress. They have recognized that federal agencies have distinct legal personalities, and declined to take responsibility for acts committed by subordinates. The historical evidence, in other words, provides a more cabined understanding of the unitary executive than the authors and President Bush's administration would have us believe.