What is the Unitary Executive?
Here’s how to understand the meaning of the term “unitary executive” being bandied about at Samuel Alito’s confirmation hearing.
Suppose Congress decides that their campaign-finance laws aren’t being enforced aggressively enough. To step up enforcement, they create a national police force to investigate campaign finance cases, granting it powers equivalent to those of the FBI. The chief of the Campaign Finance Police Force will be hired by and serve at the pleasure of the Senate Judiciary Committee. The Senate also creates an office of special prosecutors, outside of the US Attorney system, to take cases investigated by the new Campaign Finance Police to court.
Does Congress have the power to create this special police force, or to create its own police force to patrol the US border with Mexico, or to create its own agency to close down schools not conforming to the No-Child-Left-Behind Act? The answer is no. The American system of government is based on the idea that powers to make, enforce, and interpret the law must be divided amongst different groups of people.
Article II, section I of the Constitution states that…
The executive power shall be vested in a President of the United States of America.The power to enforce the law is the integral component of executive power. The unitary executive means that Congress or the courts cannot grant themselves chunks of the executive’s enforcement authority. They cannot act contrary to Article II’s requirement that enforcement of the law be carried out through the branch of government headed by the President. This in no way implies that the President is above the law.
Lest you think that a unitary executive somehow automatically implies increasing the power of the government, please note that my argument from a year ago as to why WJAR-TV reporter Jim Taricani should not have been sentenced to home-confinement for refusing to disclose a source to a judge was, in part, a unitary executive argument. Taricani’s case was prosecuted by a court-appointed special prosecutor. A special prosecutor beholden only to the judiciary, and not to any executive branch of government, should not have the power to enforce laws by threatening people with jail time.