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The Unitary Executive Theory of Presidential Power

What is it?
How does it compare to other theories?

The unitary executive theory (UET) is an interpretation of the President’s constitutional powers1 which argues that, because the President alone is identified in the Constitution as the Chief Executive, the President possesses exhaustive authority over all parts of the executive branch without limits imposed by any other branch.  The theory is derived from an interpretation of the vesting clause2 and the take care clause3 in Article I.  Because all other enumerated powers in Article II are limited, the breadth of the vesting clause is unique.  UET was first articulated and applied during the Reagan administration4 and has subsequently been invoked by Presidents George W. Bush and Donald J. Trump. 

Except for President Andrew Jackson,5 presidents from Washington to Lincoln rarely proposed legislation or projected the office’s powers beyond those enumerated in the Constitution, but instead deferred to Congress, which allowed it to became the dominant branch.6 The Civil War, however, required more powerful executive leadership to preserve the Union.  Lincoln justified exceeding his enumerated powers and, on several occasions, violating constitutional protections7 because he believed that, in an emergency, the Union’s preservation was of greater importance than following the Constitution.  His defense and explanation came to be known as the prerogative theory of presidential power, that is, extraordinary powers are available to the chief executive at the executive’s discretion.  Congress went along with Lincoln’s decisions during the War but following his assassination and the ascendance of Andrew Johnson to the office, Congress reasserted its authority, clamping down on Johnson and future presidents.8

From 1869 to 1901 (Presidents Grant through McKinley), presidents again deferred to Congress.  Writing after he left the Presidency, William Howard Taft described a theory of presidential power that he and previous Republicans followed, known as the strict constructionist theory:

The President can exercise no power which cannot be reasonably or fairly traced to some specific grant of power or justly implied or included within such express grants of power as necessary and proper to its exercise. 9

Essentially, this means that the President can only do what the Constitution specifically states the office can do and no more.  This theory was in stark contrast to that of President Theodore Roosevelt, a Progressive, who had a far more expansive view of presidential powers.10 TR’s stewardship theory held that the president could do anything he desired so long as the Constitution did not specifically forbid it.  Roosevelt argued that the President was the one office in the federal system that represented all the people.  As such, he believed that presidents should listen to the people and then turn their wishes into the president’s legislative agenda.  TR described his office as a “bully pulpit” from which he could speak to the people and to lobby Congress for his bills.  He was the first president to campaign actively across the country for a bill, the Hepburn Act of 1906.  He urged voters to contact their lawmakers on behalf of the bill, which passed.  During his 1904 campaign, Roosevelt ran on the Square Deal for all Americans, a platform in which he and the Progressive members of Congress would protect the public from the worst aspects of laissez-faire capitalism. 

Taft’s presidency witnessed a reversion to past practices of strict constructionist presidents, which angered TR.  He challenged Taft at the GOP convention and lost the nomination, but rather than go quietly, TR created a new party, the Bull Moose Party.  In the 1912 election, won by Democrat Woodrow Wilson with 42% of the vote and 435 Electoral votes, Roosevelt came in second with 27% (88 E.C. votes) and Taft in third with 23% (8 E.C. votes).  Like TR, Wilson was a progressive who further expanded the President’s constitutional powers by linking them with his informal position as the Democratic Party’s leader.11  WW argued for popular presidential leadership in which the president would listen to the people’s needs while also sharing his vision of the nation with the people.  In his 1916 campaign, Wilson presented a platform containing his legislative agenda.  He promised that, if elected, the mandate he received from the voters would permit him to push his bills through Congress.  Using press conferences (a first) and radio, WW reached far more people than any president.  Political scientists refer to Wilson’s theory of presidential leadership as the plebiscitary theory.

Republican Presidents Harding, Coolidge and Hoover (1921 to 1933) reverted to following the strict constructionist theory.  But facing the onset of the Great Depression, with a Congress unwilling to act and a restrained President Hoover, a frustrated and angry electorate sought a president willing to swiftly and boldly address the nation’s problems; it chose Franklin Delano Roosevelt, a Democratic Progressive, and his New Deal platform.  FDR aggressively used his office to tackle the depressed economy.  Working with an obliging Congress composed of large Democratic majorities in both chambers, FDR’s first hundred days in office produced a dramatic enlargement of not only of the president’s powers, but also of the physical size of the bureaucracy surrounding it, viz. the creation of the Executive Office of the President.12 WWII made additional demands on the chief executive.  Congress responded by delegating some its authority to the President that allowed FDR to act quickly in enlarge the military, purchase equipment, and negotiate with our allies.  More power flowed to the White House as subsequent presidents — Truman, Eisenhower, Kennedy and Johnson — benefited from additional powers delegated by Congress. 

By 1969, President Nixon was inheriting an institutional presidency of immense size and scope, which presided over the world’s largest and complex economy and diverse population.  Unfortunately for Nixon, he also confronted a Congress dominated by the opposition party.  On some issues, Nixon worked with Congress to pass important legislation (eg, the Clean Air and Water Acts of 1970), but on other issues, particularly discretionary social spending, Nixon sought to govern by executive order.  While the Watergate scandal ultimately led to Nixon’s downfall, Congress was passing bills that sought to retake authority that it has previously delegated to the President, eg, the War Powers Resolution of 1973 and the Budget and Impoundment Control Act of 1974.13

As previously mentioned, President Ronald Reagan was the first president to have his staff articulate the UET.  Like Nixon, Reagan faced a Congress controlled by Democrats and, also like Nixon, he happily sought compromise to achieve his legislative goals.  However, when Congress failed to deliver the legislation Reagan desired, he used executive orders to accomplish his objectives, which he defended using the UET.  Subsequent presidents — George H.W. Bush, Clinton, George W. Bush, Barack Obama and Joseph Biden — also followed Reagan’s example of utilizing executive orders when Congress balked at delivering their favored bill, but none except George W. Bush invoked the UET, which he did sparingly.  President Trump invoked the UET regularly in his first term, and more vociferously and aggressively in his second, raising real questions of a constitutional crisis, because many of the executive orders issued have violated statutes and the Constitution itself.  It remains to be seen whether the Supreme Court will interpret the Constitution consistent with the UET or with a more traditional interpretation of presidential power. 

1. Constitutional scholars have identified three categories of constitutional power: enumerated, implied and inherent.  Enumerated powers are those expressly, clearly or obviously stated in the document, eg, the president’s pardon power and the Congress’s power to lay and collect taxes.  Implied powers are those that clearly or logically flow from an enumerated power, eg, for Congress, they extend from its “necessary and proper” clause, and for the courts, the jurisdictions listed in Article III.  Inherent powers are those that derive from one or more enumerated powers that create or fulfill a “role” (function) that one naturally expects to find in a government.  For example, the President has inherent powers as head of state (he represents the US on the world stage) because the Constitution gives the President the authority to send and receive ambassadors and to negotiate treaties, powers universally accepted as those of a head of state.  Similarly, the Supreme Court’s inherent power of judicial review (to declare federal and state laws unconstitutional) derives from the Constitution, Article III, section 1 (all judicial power is vested in one Supreme Court and other federal courts created by Congress) and Article VI, section 2 (the Constitution is the supreme law of the land).  A fourth area of presidential power stems from the President’s informal power as leader of the party.  As political parties are nowhere mentioned in the Constitution, the Supreme Court doesn’t involve itself in political questions; however, presidents exercise considerable influence as party leaders.  Those advocating for the UET ground most of their arguments on the President’s enumerated and inherent powers.  ⇧
2. Article I, section 1, reads “The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows.”  ⇧
3. Of all the President’s duties, the most important is the duty “to take Care that the Laws be faithfully executed” (Article II, sec. 3, clause 3).  The Supreme Court has rendered decisions emphasizing the importance of this clause in explaining the President’s responsibilities.  ⇧
4. Among the UET’s proponents in the Reagan administration were Edwin Meese (Attorney General, 1985-1988) and David Stockman, head of the Office of Management and Budget (OMB).  Meese provided the constitutional justification that allowed Reagan to direct Stockman to carry out Reagan’s agenda through the OMB.  Similarly during both his administrations, Trump directed his OMB director, Russell Vought, to fulfill his agenda.  Trump also appears to have delegated significant discretionary authority to Elon Musk, although his exact title and official duties remain unclear at this writing.  ⇧
5. Jackson thought that presidents possessed greater authority than did his predecessors.  During his two terms, he exercised the veto more times — eleven — than all his predecessors combined, including the first use of the pocket veto.  He closed the Second National Bank of the US, which had been properly established by Congress, by transferring funds from the Bank, thereby thwarting Congress’s will and provoking a constitutional crisis.  Congress eventually acquiesced to Jackson  ⇧
6. From Washington through John Q. Adams, only nine vetoes were issued.  Washington believed that presidents should not contravene Congress’s legislation, because it spoke for the people.  Only if a bill appeared to violate the Constitution or the people’s expressed wishes should the veto be employed.  His precedent held until Jackson.  ⇧
7. For example, suspending habeas corpus, imposing a blockade on the Confederate states (an act of war) without a declaration of war by Congress, and imposing martial law on border states, to name a few.  Habeas corpus derives from the English common law.  It protects anyone accused of a crime and placed in custody by law enforcement by allowing them to challenge the legality of the custody before a court.  The arresting entity must present evidence that ties the accused to the crime.  ⇧
8. Congress’s failed attempt to impeach Johnson was not only an obvious message to the sitting president but to future ones as well.  Also, the Supreme Court rendered several decisions following the War that struck down several of Lincoln’s actions.  For example, Ex parte Merryman (1861) declared the suspension of habeas corpus unconstitutional (Lincoln ignored this) while Ex parte Milligan (1866) held that using military tribunals to try civilians under martial law was unconstitutional.  ⇧
9. Taft, William Howard.  Our Chief Magistrate and His Powers. New York: Columbia University Press, 1916.  ⇧
10. TR assumed office with President McKinley’s assassination in 1901; he completed McKinley’s term and was elected in his own right in 1904 election.  TR chose Taft, a close friend, to succeed him as the Republican candidate in the 1908 election, which Taft won.  ⇧
11. Progressives in both parties advocated for replacing their national conventions with primaries as a way of giving the parties’ members a larger voice in the nominating process.  Presidential preference primaries were slowly adopted by states that gave the people a voice although the primaries’ outcomes did not replace the conventions’ choices until 1972.  Yet, primaries gave presidential candidates an opportunity to directly campaign among the voters, and thereby gain their confidence and support, which could later be translated by the winning candidate into claiming a mandate. ⇧
12. In 1936, FDR appointed a committee to recommend measures to reorganize the executive branch.  The New Deal had created more offices and agencies in the executive branch than Roosevelt could oversee without help.  The committee, chaired by Louis D Brownlow, included two political scientists, Charles E. Merriam and Luther Gulick.  The Brownlow Commission recommended a vast overhaul of the executive branch, the hiring of new assistants, and the creation of the Executive Office of the President (EOP).  The report proved controversial, and Congress delayed approval until 1939, when the legislation established a smaller reorganization than proposed.  Future presidents expanded the EOP into an institution of substantial size that permitted the President to monitor and control the executive branch from the White House.  It is staffed mostly by political appointees, who do not require Senate confirmation. ⇧
13. See Arthur M. Schlesinger, Jr.  The Imperial Presidency.  Mariner Books, 2004.  ⇧

Additional Information

For additional readings, see  Milkis, Sidney M. and Nelson, Michael  The American Presidency: Origins and Development, 1776–2020, 9^th ed. Washington: Congressional Quarterly Press, 2021.  McDonald, Forrest  The American Presidency: An Intellectual History. Manhattan, KS: University of Kansas Press, 1994.  Corwin, Edward S.  The President: Office and Powers. New York: New York University Press, 1984.
 

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