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.
I like your blog, and I read often, though I don’t necessarily agree all that often. It is thoughtful and well written, so it always worth the read.
Anyway, I am pretty sure that you are misinformed in this post about a unitary executive.
1. Congress could create such a police force, and in fact, would have to create it. It would be created as part of the executive department, but it would be ultimately up to Congress to authorize it and make it happen. Remember all of the hullabaloo over the Dept. of Homeland Security a few years back. All Executive Depts are created by Congress, and run by the executive.
2. Following on #1, your Taricani argument doesn’t work, because prosecutors (at all levels) do not work in the judiciary. They are part of the executive department, and are beholden to an executive.
The key to my example is that the hypothetical new agency has a director who reports directly to the Senate Judiciary committee, not to the President. That’s what would make it unconstitutional.
And if you look back at the details of the Taricani case (http://www.anchorrising.com/barnacles/001140.html and the linked Projo article), you’ll see that Taricani was prosecuted by a court-appointed special prosecutor outside of the executive branch chain of command.
It was an unconstitutional power grab of enforcement authority by a judge.