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The Unitary Executive

The Unitary Executive: Presidential Power from Washington to Bush

Copyright Date: 2008
Published by: Yale University Press
Pages: 558
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  • Book Info
    The Unitary Executive
    Book Description:

    This book is the first to undertake a detailed historical and legal examination of presidential power and the theory of the unitary executive. This theory-that the Constitution gives the president the power to remove and control all policy-making subordinates in the executive branch-has been the subject of heated debate since the Reagan years. To determine whether the Constitution creates a strongly unitary executive, Steven G. Calabresi and Christopher S. Yoo look at the actual practice of all forty-three presidential administrations, from George Washington to George W. Bush. They argue that all presidents have been committed proponents of the theory of the unitary executive, and they explore the meaning and implications of this finding.

    eISBN: 978-0-300-14538-0
    Subjects: History, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xiv)
  4. Part I An Introduction to the Debate over the Unitary Executive

    • The Oldest Debate in Constitutional Law and Why It Still Matters Today
      (pp. 3-9)

      One of the oldest and most venerable debates in U.S. constitutional law concerns the scope of the president’s power to remove subordinates in the executive branch or to direct their actions. This debate over whether to have a unitary executive arose during the Philadelphia Convention that drafted the Constitution, and it flared into a huge public controversy in the so-called Decision of 1789 during the First Congress. Proponents of presidential power argued then and argue now that the Constitution gives and ought to give all of the executive power to one, and only one, person: the president of the United...

    • The Modern Debate
      (pp. 10-21)

      The debate over the unitary executive is simultaneously one of our oldest, most venerable constitutional debates and one of our most modern. Ratification of the Constitution and the Decision of 1789 did not end the controversy over the unitary executive and the president’s ability to control the actions of his subordinates in the executive branch. Disputes over whether Congress could limit the president’s removal power continued to arise, often intertwined with the biggest and most controversial political battles of the day. The issue arose with increasing frequency throughout the twentieth century, as the federal bureaucracy ballooned in size and presidents...

    • Why Presidential Views of the Scope of Presidential Power Matter
      (pp. 22-29)

      One important ground on which our book might be criticized is that it is entirely predictable that all forty-three presidents would favor a broad understanding of presidential power. According to this criticism, a survey of the practice since the founding should focus on the statutes enacted by Congress and not on presidential understandings of the scope of presidential power. The president, it might be charged, is inherently biased when it comes to questions about the scope of presidential power.

      The first thing to say in rebuttal is that the same claims of bias can be raised against the alternative methodology...

    • The Preratification Origins of the Unitary Executive Debate and the Decision of 1789
      (pp. 30-36)

      Before proceeding to our chronicle of the past 218 years of practice under our Constitution, we wish briefly to summarize the historical events between American independence in 1776 and the Constitutional Convention in 1787 that gave rise to Article II in order to understand the construction that presidents from Washington to Bush have given to Article II over our entire history. Thus, we conclude this introductory part of our book by discussing the eleven years during which the structure of our government gestated as well as the key events in 1789 when Article II first came to be construed as...

  5. Part II The Unitary Executive During the Early Years of the Republic, 1787–1837

    • [Part II Introduction]
      (pp. 37-38)

      The first half-century of the Republic was a key time in the growth of our constitutional system. Informed by their frustration with the system of “executive by committee” used by the Articles of Confederation, the framers specifically considered and rejected proposals to divide the executive power among multiple presidents. Some of the proposals that were rejected would have divided the executive power between the president and a council of revision or a council of state. The framers clearly opted instead for an independent, coequal, and strongly unitary executive branch of government. Thus, it is generally conceded that “no one denies...

    • 1 George Washington
      (pp. 39-57)

      George Washington’s strong support for the unitary executive grew out of events that occurred long before he became the first president of the United States. In particular, Washington’s views on the subject were greatly shaped by his experiences during the Revolutionary War, when several committees of the Continental Congress served as the army’s plural executive head. These ineffective multiple committees led Washington to plead throughout the war for creation of a single executive structure that would have the power and the duty to “act with dispatch and energy,” and to complain repeatedly about “the inconvenience of depending upon a number...

    • 2 John Adams
      (pp. 58-63)

      President John Adams was strongly committed to the theory of the unitary executive. Leonard White describes Adams as being “an uncompromising friend of the executive, on theoretical as well as practical grounds.”¹ Thus, in 1776, Adams warned that “the executive power cannot be well managed” by plural bodies like legislatures “for want of two essential qualities, secrecy and dispatch.”² Adams also supported shifting executive authority from the Continental Congress to departments headed by single executives, which would give the departments “an order, a constancy, and an activity which could never be expected from a committee of congress.”³ Adams noted in...

    • 3 Thomas Jefferson
      (pp. 64-76)

      Thomas Jefferson’s first reaction to the office of the presidency as described in the text of the proposed Constitution of 1787 was one of horror. Jefferson wrote that the newly proposed “President seems a bad edition of a Polish King. He may be reelected from 4 years to 4 years for life. . . . When one or two generations shall have proved that this is an office for life, it becomes on every succession worthy of intrigue, of bribery, of force, and even of foreign interference.”¹ Thus, in 1787, Jefferson shared much of the widespread view of the Anti-Federalists...

    • 4 James Madison
      (pp. 77-82)

      James Madison was, along with James Wilson, one of the key architects of the presidency at the Constitutional Convention, and he was a vigorous advocate both of a strong presidency and of the view that the Constitution gave the president the removal power. Madison had favored the Virginia Plan at the Philadelphia Convention, under which both houses of Congress were to be apportioned by population, and he was an ardent nationalist in the 1780s. Accordingly, he was loath to expand the prerogatives of the Senate either over removals or over appointments to fill the vacancies thus created, since the Senate...

    • 5 James Monroe
      (pp. 83-90)

      James Monroe proved to be a stronger president than James Madison, although he lacked the charismatic personality and leadership abilities of Thomas Jefferson. He too proved to be a committed believer in the vital importance of a unitary executive structure, but regrettably he did not always act on his beliefs.

      Monroe’s support for the unitary executive and for the importance of administrative hierarchy became evident long before he assumed the presidency. In a letter to Congressman Adam Seybert regarding the Patent Office written in 1812 while Monroe was serving as secretary of state, the future president wrote: “I have always...

    • 6 John Quincy Adams
      (pp. 91-94)

      John Quincy Adams was, like his father, a strong believer in the value of a hierarchical, unitary executive branch. Thus, Adams was (as Leonard White puts it) “temperamentally a man to restore the presidency to its original high estate.” As White elaborates, “The last of the Jeffersonians in the White House, John Quincy Adams, was in truth more nearly a Federalist than a Republican. His political doctrines resembled those of Alexander Hamilton, and his ideals of administration were those of George Washington and his father, John Adams.”¹

      Adams’s support for executive unitariness surfaced long before he entered the White House....

    • 7 Andrew Jackson
      (pp. 95-104)

      Andrew Jackson was one of the most powerful presidents in American history, and he clearly transformed and enhanced many aspects of the high office he held. In his development of the president’s role as the leader of a political party and in the force with which he pressed the president’s claim to be a direct representative of the people, Jackson clearly broke new ground. He also distinguished himself in the vigor with which he used the veto power, especially in cases where he disapproved of bills on policy grounds rather than for constitutional reasons. Finally, he used the president’s removal...

    • CASE STUDY 1 Jackson’s Battle with the Bank and the Removal of Treasury Secretary Duane
      (pp. 105-122)

      The conflict between Andrew Jackson and Congress over the second Bank of the United States began in 1832 when, in what is now widely perceived as a blunder, the bank’s president, Nicholas Biddle, pressed for its recharter four years before its initial charter was to expire. Jackson hated the bank with an almost irrational vehemence, describing it at times as a hydra-headed monster that impaired the morals of the American people, corrupted their leaders, and threatened their liberty. Jackson took the recharter proposal both as a challenge to his independence and as an indication of the bank’s intention to meddle...

  6. Part III The Unitary Executive During the Jacksonian Period, 1837–1861

    • 8 Martin Van Buren
      (pp. 124-129)

      President Martin Van Buren was generally a loyal follower and implementer of Jackson’s views, which is significant given Jackson’s enthusiastic embrace of the theory of the unitary executive during the Bank War. Van Buren’s biographer Major L. Wilson describes Van Buren’s close affinity with Jackson as follows: “In a public letter accepting the nomination of the Democratic party to succeed Andrew Jackson as president, Martin Van Buren pictured himself ‘the honored instrument’ of the administration party and vowed ‘to tread generally in the footsteps of President Jackson.’ Friends welcomed the statement as a pledge to defend the work of Jackson....

    • 9 William Henry Harrison
      (pp. 130-132)

      The Whig presidency of William Henry Harrison saw the same aggressive defense of executive power that is often associated with the Jacksonian Democrats. This was surprising, since the Whig Party’s self-proclaimed raison d’être was belief in a limited and weak executive branch. Indeed, in correspondence prior to his election as president, Harrison had endorsed a program that would confine presidential service to a single term, establish a Treasury independent of presidential control, and strictly limit the use of the veto power.¹ Many observers had assumed that the election of Harrison would mark a sharp reversal in the president’s position with...

    • 10 John Tyler
      (pp. 133-138)

      William Henry Harrison’s untimely demise, just a month into his term as president, thrust Vice President John Tyler into the presidency. Tyler’s accession to chief executive dismayed Whig leaders in Congress. Despite Harrison’s apostasy in many areas of Whig presidential doctrine, most congressional Whigs accepted him as a “birthright” Whig whose other party loyalties were basically secure. Tyler, a traditional states’ rights Democrat who had joined the Whig ticket in the spirit of anti-Jackson coalition, did not inspire similar confidence among the Whigs.

      Doubts about Tyler added to general Whig hostility to presidential power. Many congressional Whig leaders immediately attempted...

    • 11 James K. Polk
      (pp. 139-143)

      Presidential support for the unitary theory of the executive branch did not waver when the Jacksonian Democrats returned to power under James K. Polk. A Jacksonian Democrat from Tennessee, Polk was often called “Young Hickory,” and his assertive philosophy of presidential power mirrored that of his colloquial namesake, Andrew Jackson. Polk’s biographer Paul Bergeron reports that “Polk did not conform to the Whiggish notions about weak or limited presidents who yielded to a vigorous and dominant legislative branch. Imitating the model established by his mentor, Andrew Jackson, Polk set out to dominate the nation’s capital in just about every respect...

    • 12 Zachary Taylor
      (pp. 144-147)

      Zachary Taylor was a genuine war hero in the mold of Presidents George Washington, Andrew Jackson, and William Henry Harrison. He was selected as the Whig candidate for president because, like Harrison, he was a former general. Unfortunately for the Whigs, who elected only these two presidents, Taylor, like Harrison, was to die in office. Taylor’s term in office lasted only sixteen months, from March 4, 1849, to July 9, 1850.

      Taylor had some genuinely Whiggish ideas about the presidency and presidential power. A supportive newspaper once went so far as to say, “Taylor . . . had taken office...

    • 13 Millard Fillmore
      (pp. 148-151)

      Vice President Millard Fillmore succeeded Zachary Taylor as president on July 10, 1850, and like John Tyler, he immediately assumed the title of president (rather than acting president) and proceeded to exercise the full powers of the presidential office. Today, Fillmore is remembered as one of America’s most forgettable presidents, but he was by no means a cipher while in office. Fillmore’s biographer Elbert Smith reports, “Millard Fillmore was neither quarrelsome nor vindictive by nature, but his bland exterior and impeccable manners concealed a fighting spirit in its own way just as tough as that of Zachary Taylor. Fillmore had...

    • 14 Franklin Pierce
      (pp. 152-156)

      Franklin Pierce and his successor, James Buchanan, were two of the worst presidents in American history. Pierce was totally dominated by his Southern cabinet members, especially his vocal and very visible secretary of war and future president of the Confederacy, Jefferson Davis. “The result was government by cabinet,” a disastrous result except with respect to foreign policy, where the able secretary of state, William Marcy, was able to rescue a few limited successes.¹

      Notwithstanding his weaknesses both as a man and as president, Pierce was a committed Jacksonian who, as a matter of political philosophy, subscribed to the broad views...

    • 15 James Buchanan
      (pp. 157-162)

      James Buchanan, our worst president, came to the presidency with a well-established reputation as a defender of the president’s authority to execute the law. He had defended the president’s veto power on Jacksonian grounds and had personally drafted the Democratic response to Whig assertions of limited executive power as a Democrat in the Senate during the Tyler administration. Indeed, it was Buchanan’s writings during the 1840s that effectively served as the last word on the question of presidential power to veto legislation at will.¹

      Buchanan’s administration got off to a horrible start, according to his biographer Elbert Smith, when the...

  7. Part IV The Unitary Executive During the Civil War, 1861–1869

    • [Part IV Introduction]
      (pp. 163-164)

      Buchanan’s refusal to oppose the rebellion of the Southern states set the stage for the climactic event of the first century of our nation’s history: the Civil War. Struggles over the balance of power between the president and Congress emerged as an important undercurrent that ran throughout the war. The desperation of the times led Abraham Lincoln to assert and Congress to tolerate an unprecedented degree of concentration of power in the chief executive. The result was that Lincoln led and Andrew Johnson inherited perhaps the strongest presidency in our nation’s history.

      In fact, the unique nature of the Civil...

    • 16 Abraham Lincoln
      (pp. 165-173)

      If James Buchanan was one of the nation’s worst presidents, then Abraham Lincoln was one of its best. Lincoln’s administration clearly represented the zenith of presidential power during the first century under the Constitution. The exigencies of the Civil War demanded that Lincoln wield a range of powers the likes of which the country had never before witnessed, and many of his enemies accused him of taking on dictatorial or tyrannical powers. Lincoln’s strong presidency is ironic because he began his political career as a Whig and, like most Whigs in the 1840s and 1850s, he had been opposed to...

    • 17 Andrew Johnson
      (pp. 174-178)

      Abraham Lincoln was succeeded by one of our worst presidents, Andrew Johnson of Tennessee. Johnson was one of only two presidents to be impeached, and, as we indicate below, his sabotage of congressional Reconstruction warranted his impeachment and removal. However, Johnson’s actual impeachment was based on his violation of the unconstitutional Tenure of Office Act, which illegally sought to limit the president’s removal power. Johnson’s acquittal (by one vote) on this charge was due to his strong defense of the unitary executive and to several senators who agreed with this defense. Importantly, Johnson promised key senators that, if acquitted, he...

    • CASE STUDY 2 The Tenure of Office Act and the Impeachment of Andrew Johnson
      (pp. 179-188)

      The most sweeping limitation placed on President Johnson’s removal power was the Tenure of Office Act. Passed during the winter of 1867 along with the First Military Reconstruction Act, the Tenure of Office Act specifically provided that all civil officers appointed with the advice and consent of the Senate would hold office until their successors were confirmed by the Senate. If the Senate was in recess, the president was permitted to suspend an executive officer so long as he reported the reasons for the suspension to the Senate within twenty days of its return to session. If the Senate failed...

  8. Part V The Unitary Executive During the Gilded Age, 1869–1889

    • 18 Ulysses S. Grant
      (pp. 190-195)

      Ulysses S. Grant was the only president to serve eight consecutive years in the White House between the terms of Andrew Jackson and Woodrow Wilson. He became president after having served as general in chief for the entire Johnson administration, a position that allowed Grant to play a major administrative role in determining the course of Reconstruction. Indeed, it could be said that after Abraham Lincoln was shot in the waning days of the Civil War, it was Grant who held things together, received the surrender of the Confederate forces, demobilized the Union Army, and presided over Reconstruction.

      Grant immediately...

    • 19 Rutherford B. Hayes
      (pp. 196-202)

      Rutherford B. Hayes became president in 1877, when the power of the Republican Party was at a low point. This ebbing of the tide of Republican power was reflected in the presidential election of 1876, in which Hayes decisively lost the popular vote contest to Democrat Samuel Tilden, but was awarded the presidency by a special Electoral Commission that concluded he had won in the Electoral College. After the Electoral Commission had awarded him the presidency, Hayes set about picking a cabinet and, astonishingly under the circumstances, resolved to do this completely independent of Congress. As Leonard White reports, “Powerful...

    • 20 James A. Garfield
      (pp. 203-205)

      James A. Garfield was elected to the House of Representatives in 1862, where he served as a Radical Republican member until his election to the presidency. While in the House, Garfield exhibited an unsurprising pro-Congress bias. He favored a proposal to give department heads seats in Congress in order to rein in the executive branch. And in 1869, when Grant pushed a bill that would have repealed the Tenure of Office Act through the House of Representatives, Garfield opposed it: “Never by my vote shall Congress give up the constitutional principle and allow to any one man, be he an...

    • 21 Chester A. Arthur
      (pp. 206-208)

      Vice President Chester A. Arthur had been placed on the Republican ticket in 1880 to create sectional and ideological balance. There was little in Arthur’s “background to prepare him for executive leadership.”¹ As we noted in chapter 19, from 1871 until his dismissal in 1878, Arthur had been the spoilsman collector of the port of New York, a post in which he had been found by the Jay Commission to be notoriously corrupt. Worst of all, his administration was hamstrung by the fact that he assumed the presidency without having been elected to it.

      The beginning of Arthur’s administration showed...

    • 22 Grover Cleveland’s First Term
      (pp. 209-216)

      As president, Grover Cleveland pledged public allegiance to “a Whiggish version of the presidency—the chief executive restricted to administrative duties and abjuring a role in the legislative process”—but in his heart he was “nostalgic for the Jacksonian past,” as Cleveland biographer Richard E. Welch Jr. puts it. Cleveland’s “political heroes” were Jefferson and Jackson, and like Jackson, he believed the president, with his unique national constituency, was “the people’s tribune.” He particularly admired Jackson’s “presidential independence and the authority of the righteous executive in contest with mischievous senators.” Cleveland’s Jacksonian pedigree suggests his belief in the untrammeled importance...

  9. Part VI The Unitary Executive During the Rise of the Administrative State, 1889–1945

    • [Part VI Introduction]
      (pp. 217-218)

      We now examine the presidencies during the third half-century of our constitutional history, beginning with Benjamin Harrison and ending with Franklin Delano Roosevelt. In the process, we offer an extended analysis of FDR’s failed attempt in 1937 and 1938 to implement the Brownlow Committee’s proposal to reorganize the executive branch, an event that is typically acknowledged as the next key battle between the president and Congress over control of the execution of the law after the fight over the Tenure of Office Act.¹

      In many ways, this period represents the crux of the debate over whether our history under the...

    • 23 Benjamin Harrison
      (pp. 219-225)

      When in 1889 Benjamin Harrison became the first and only grandson of a president to be elected to the presidency, many Americans were uncertain how much to expect from him. He had been selected by the Electoral College after losing the popular vote to Grover Cleveland. Moreover, Harrison had had only a short career in national politics before assuming the presidency.

      Any doubts about Harrison’s willingness to take responsibility for executing the law would prove short lived. As his biographers Homer Socolofsky and Allan Spetter report, “Benjamin Harrison lacked experience as an administrator and had had only six years in...

    • 24 Grover Cleveland’s Second Term
      (pp. 226-231)

      The presidential election of 1892 represented the first contest between candidates who had both seen presidential service at the time of the election. Richard Welch emphasizes that Grover Cleveland was “a latter day Jacksonian” who wished to be seen as the tribune of the people. Cleveland appreciated that the American public was weary of the personal quarrels and bickering that had characterized American politics since the Civil War and would look with favor upon a candidate and a president who appeared to stand tall and independent, an example of rugged individualism and political courage. He was “well aware that only...

    • 25 William McKinley
      (pp. 232-237)

      William McKinley became president in 1897 after having been elected as the candidate of the Republican Party—a party torn between its Whiggish roots and its recent Lincolnian past. Lewis Gould, McKinley’s biographer, reports that the “Whiggish heritage of the Republicans made them suspicious of a strong executive; a powerful Congress was the appropriate vehicle for their nationalism.” In the end, McKinley turned out to be another strong president in the mold of Lincoln or Cleveland. In the process, he laid the foundations of the modern presidency, anticipating many innovations associated more today with Theodore Roosevelt. Gould further observes, “Imperceptibly...

    • 26 Theodore Roosevelt
      (pp. 238-245)

      Theodore Roosevelt assumed the presidency on September 14, 1901, after the assassination of McKinley. The take-charge style that would become the hallmark of his administration did not appear right away. Roosevelt held his first cabinet meeting on September 20, during which he immediately asked all members of McKinley’s cabinet to stay on and received reports on the varied business of their departments. Secretary of State John Hay, who had worked for Lincoln and been close to Garfield, was devastated when his friend McKinley became the third president to fall to an assassin. He tried to resign, but Roosevelt asked him...

    • 27 William H. Taft
      (pp. 246-252)

      William Howard Taft’s view of presidential power was considerably more modest than Theodore Roosevelt’s; as Taft’s biographer Paolo E. Coletta observes, Taft did not at all follow Roosevelt’s practice of appealing “over the head of Congress to the people.”¹ Taft attacked the stewardship theory as “an unsafe doctrine,” and he disagreed with Roosevelt’s view that “the Executive is charged with responsibility for the welfare of all the people in a general way, that he is to play the part of a Universal Providence and set all things right, and that anything that in his judgment will help the people he...

    • 28 Woodrow Wilson
      (pp. 253-260)

      Presidential support for the unitary executive continued during the administration of Woodrow Wilson. That Wilson emerged as a major champion of presidential power came as something of a surprise. His doctoral thesis, which became a well-known and widely acclaimed 1885 book entitledCongressional Government, remains one of the classic endorsements of parliamentary government. Written in the wake of the series of relatively weak presidents that had been dominated by the Reconstruction Congresses,Congressional Governmentdismisses the presidency as a weak office, concerned with “mereadministration,” the chief executive reduced to little more than “the first official of a carefully-graded and...

    • 29 Warren G. Harding
      (pp. 261-264)

      The presidency of Warren Harding is consistently ranked as one of the worst, if nottheworst, in our nation’s history.¹ Indeed, Harding was well aware of his own shortcomings, having once admitted to Columbia University’s president that “I am not fit for this office and should never have been here.”² A congenial man who abjured conflict, Harding was by nature most comfortable remaining outside the fray and conciliating divergent interests. This outlook made him deeply suspicious of strong presidential power, which he believed could only lead to troubled relations with Congress, as it had during the Wilson administration. As...

    • 30 Calvin Coolidge
      (pp. 265-272)

      Warren Harding’s death elevated Calvin Coolidge to the presidency. A reticent man who reflected many of the values of his rural New England roots, “Silent Cal” was the antithesis of the activist president. Indeed, Walter Lippmann reported that his “political genius . . . was his talent for effectively doing nothing.”¹

      Coolidge’s reluctance to assume national leadership or to impose his will on Congress did not, however, translate into reluctance to defend the president’s prerogatives. Coolidge was more than willing to fight to assert the president’s sole right to control the execution of the federal laws. For instance, the degree...

    • 31 Herbert Hoover
      (pp. 273-277)

      Herbert Hoover reached the White House after lengthy service as secretary of commerce and labor to Presidents Harding and Coolidge. Although Hoover shared Coolidge’s reticence about interfering with the prerogatives of Congress, that reticence did not stop him from continuing his predecessors’ defense of the president’s authority to execute the law. In fact, his opposition to infringements on the unitariness of the executive branch began long before his inauguration. While a member of the Coolidge administration, Hoover had questioned the constitutional propriety of conferring executive powers upon independent agencies, arguing that “there should be single-headed responsibility in executive and administrative...

    • 32 Franklin Delano Roosevelt
      (pp. 278-290)

      The scope of presidential power exploded during the presidency of Franklin Delano Roosevelt. One of the first critical issues facing FDR when he assumed office on March 4, 1933, was how to deal with the crisis of the Great Depression. What followed was a burst of activity during the first hundred days of his administration that was the quintessence of “executive energy rapidly applied.” Roosevelt augmented his formal legislative program with weekly press conferences and regular national radio addresses, which would later become known as fireside chats. Although he offered few definitive statements on the issue, his aggressive actions to...

    • CASE STUDY 3 The Brownlow Committee and the Reorganization Act of 1939
      (pp. 291-302)

      The event during the Roosevelt administration with the greatest significance for the unitary executive was the debate over the Brownlow Committee’s proposal to reorganize the executive branch, which, as Elena Kagan has pointed out, “established the infrastructure underlying all subsequent attempts by the White House to supervise administrative policy.”¹ When Roosevelt announced his intention to reorganize the executive branch in January 1937, few expected that he would face significant opposition. Politically, Roosevelt seemed almost invincible. His recent Electoral College landslide appeared to be a ringing endorsement of both his leadership and his New Deal policies. By 1937, the need for...

  10. Part VII The Unitary Executive During the Modern Era, 1945–2007

    • [Part VII Introduction]
      (pp. 303-304)

      We now examine the presidencies during the fourth half-century of our constitutional history to see the views expressed by presidents from Harry Truman to George W. Bush regarding the scope of the president’s power to execute the law. The years 1945 to 2007 represent a particularly interesting period in the constitutional history of presidential power. The executive branch that emerges during the second half of the twentieth century is a mammoth operation that dwarfs the scale of administration during the time of George Washington. Indeed, the size of the modern federal bureaucracy far exceeds even the burgeoning administrative state that...

    • 33 Harry S Truman
      (pp. 305-317)

      Harry S Truman succeeded Franklin D. Roosevelt as president at a time when the world was consumed by war. Fortunately, as Truman’s biographer Donald R. McCoy points out, his character “enabled him to make much of his on-the-job training as president. He was brisk, decisive, direct, industrious, practical, and tough.” Truman “exercised command vigorously,” and he gets high marks as “a supremely tough, decisive leader” who from the start was completely in control of his entire administration.¹ David McCullough reports that upon being sworn into office, Truman made clear to the members of Roosevelt’s cabinet that “he welcomed their advice....

    • 34 Dwight D. Eisenhower
      (pp. 318-330)

      In sharp contrast to Franklin D. Roosevelt and Harry S Truman, Dwight D. Eisenhower did not aspire to be an activist president. As a career soldier, he considered it his duty to remain above politics, and he consistently strove to operate behind the scenes when guiding national policy. As his biographers Chester J. Pach Jr. and Elmo Richardson observe, “At a time of widespread discontent with the ‘imperial presidency,’ restraint in the exercise of presidential power looked far more attractive than it had a decade earlier.” The general consensus of historians, however, is that Eisenhower “only appeared to be a...

    • 35 John F. Kennedy
      (pp. 331-336)

      John F. Kennedy viewed himself as a strong, active president “in the Democratic tradition of Woodrow Wilson, Franklin D. Roosevelt, and Harry S. Truman.”¹ He wrote before becoming president, “When the Executive fails to lead . . . it leaves a vacuum that the Legislative branch is ill-equipped to fill.” In his criticism, he “charged the executive branch with having had a ‘failure of nerve.’ . . . The key words were challenges, vigorous, fight, and the need for a president ready to ‘exercise the fullest powers of his office.’”² Kennedy’s splendid inaugural address immediately demonstrated his talent for using...

    • 36 Lyndon B. Johnson
      (pp. 337-345)

      Anyone familiar with Lyndon Johnson’s legendary personality would have little doubt that he would be a strong chief executive. That said, Johnson ascended to the presidency under extraordinarily difficult conditions, having to succeed a charismatic leader who, after capturing the imagination of the country, died under tragic circumstances. Having sworn to continue Kennedy’s vision, Johnson inherited a fully staffed executive branch to which he could not make significant changes without seeming to abandon Kennedy’s legacy. For instance, in order to associate his antipoverty campaign with Kennedy, Johnson appointed Kennedys brother-in-law, Sargent Shriver, to head the War on Poverty. In what...

    • 37 Richard M. Nixon
      (pp. 346-355)

      Richard M. Nixon came to the presidency with a deep admiration for the system of cabinet governance that he thought had prevailed during the Eisenhower administration. His initial plan was to let department heads run their programs quite independently, while he concentrated on foreign policy. But, during his five-year tenure in office, he in fact appointed thirty cabinet heads, breaking the old record held by Ulysses S. Grant, and the median length of tenure of cabinet secretaries fell from forty months to eighteen. Nixon was not afraid to make removals, as the frequent turnover in his cabinet secretaries illustrates. Indeed,...

    • 38 Gerald R. Ford
      (pp. 356-361)

      When Gerald R. Ford came to the White House, he had every reason to expect that he would be hard pressed to defend the prerogatives of the executive branch, given that Watergate had effectively destroyed public confidence in the presidency. Moreover, having never run for national office, Ford lacked the mandate and the broad base of political support needed for vigorous presidential action. More than any other post–World War II president, Ford could have been expected to acquiesce in congressionally imposed invasions on the unitariness of the executive branch. Instead, aided by his assistant attorney general for the Office...

    • 39 Jimmy Carter
      (pp. 362-373)

      The administration of Jimmy Carter almost certainly represents the nadir of presidential power in the post–World War II era. Unable to articulate a clear vision for the country and beset by the oil and Iranian hostage crises, Carter proved ill suited to assume the strong leadership role taken by many of his predecessors.¹ His political weaknesses, however, did not translate into a willingness to allow control over the execution of the law to be transferred from the White House to Capitol Hill. On the contrary, in spite of its other problems, the Carter administration appears for the most part...

    • 40 Ronald Reagan
      (pp. 374-383)

      The inauguration of Ronald Reagan marked the nation’s reemergence from its post-Watergate malaise and a major turning point in the balance of power between the president and Congress over the administration of the law. Both the Reagan administration’s supporters and its critics generally considered the defense of the unitary executive a key part of Reagan’s policy program.¹ As Charles Fried, Reagan’s solicitor general, has written, “The Reagan Administration had a vision about the arrangement of government power: the authority and responsibility of the President should be clear and unitary. The Reagan years were distinguished by the fact that that vision...

    • 41 George H. W. Bush
      (pp. 384-390)

      More than almost any other president besides William Howard Taft, George Herbert Walker Bush staunchly defended the unitariness of the executive branch.¹ Bush was a vigorous, hands-on leader, and his attention to detail was appreciated by the public after concerns in Ronald Reagan’s later years over his inattention to detail. Bush’s biographer John Robert Greene reports, “Despite Americans’ latent affection for Ronald Reagan, long before 1988 they had become troubled with his hands-off, detached approach to presidential leadership. In George Bush they found Reagan’s polar opposite. Bush’s style of executive leadership was characterized by indefatigable energy. Indeed the words ‘energetic’...

    • 42 Bill Clinton
      (pp. 391-399)

      Although Bill Clinton has emerged as one of the most controversial presidents of the twentieth century,¹ all agree that Clinton’s intelligence and knowledge of policymaking details are very impressive. As Elena Kagan has shown, Clinton was a master at asserting presidential control over the executive branch of the government, including the independent agencies.² Joe Klein, Clinton’s biographer, notes that the president’s ability awed his staff, because of “Clinton’s intelligence—particularly, his encyclopedic knowledge of policy questions—his perseverance and his ability to charm almost anyone under any circumstances; he was, without question, the most talented politician of his generation. At...

    • CASE STUDY 4 The Clinton Impeachment and the Fall of the Ethics in Government Act
      (pp. 400-404)

      The Clinton years also witnessed one of the most climactic moments in the history of the unitary executive: the demise of the Ethics in Government Act (EIGA) and the institution of court-appointed independent counsels. This demise began when Clinton directed Attorney General Janet Reno to investigate allegations of improper conduct regarding the Arkansas Whitewater Development Corporation. Because the EIGA had lapsed at the end of the Bush administration thanks to the first President Bush’s constitutionally motivated veto threats, Reno invoked her authority under Justice Department regulations to appoint Robert Fiske, a moderate Republican and prominent member of the New York...

    • 43 George W. Bush
      (pp. 405-416)

      We complete our chronicle of the unitary executive by offering a few observations about the presidency of George W. Bush. Obviously, the full history of the current administration has yet to be written, but given the importance of recent events to the historical narrative of the battle between the president and Congress for control over the administration of federal law, it seems appropriate to offer a brief discussion of some of the major events that occurred during President Bush’s first seven years in office. As we noted in the Introduction, the Bush administration has attempted at times to invoke the...

  11. Part VIII Conclusion

    • [Part VIII Conclusion]
      (pp. 417-432)

      Now that we are done with our review of the practices of all forty-three presidents, from George Washington to George W. Bush, we can weigh the claim that is often made that the theory of the unitary executive is foreclosed by the sweep of history. As we said in the Introduction, we weigh this claim as departmentalists who believe in three-branch constitutional interpretation, of the kind defended inThe Federalist No. 49and endorsed by Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin D. Roosevelt, Ronald Reagan, and a veritable all-star list of constitutional scholars. Departmentalism holds that Congress and the...

  12. Notes
    (pp. 433-510)
  13. Bibliographic Note
    (pp. 511-516)
  14. Index
    (pp. 517-544)