Unitary Executive Theory

Unitary executive theory is a model of executive power proposed by constitutional law experts and neoconservative intellectuals such as John Yoo and Harvey C. Mansfield. It argues that all executive power is derived from the presidency and thus that all executive action must be consistent with the power of the office of the unitary executive.

The theory

The theoretical basis of the model stems from two clauses in the Constitution:

• The "Take Care" clause:"The President shall take care that the laws be faithfully executed..."
• The "Vesting" clause:"the executive Power shall be vested in a President of the United States of America."

Based on these clauses it then becomes evident that all laws must be consistent with the power of the unitary executive. If a law is made that places restrictions on this power, those restrictions must themselves be imposed by the executive branch on itself.

Since the "Vesting" clause places all executive power ultimately in the president, such a law would necessarily cause the president to enforce laws against himself, which would be an inherent contradiction in the law. Any such law would in effect be a law that says "by this law, this law shall not be enforced."

Criticism

Criics contend that the founding fathers' "original intent" provides no clear evidence for a "unitary executive" whose decisions necessarily trump those of the other branches.

During the Presidency of George W. Bush (2001-09) critics sais the unitary model gave the presidency more power than it should have according to the Founding Fathers, and that it was leading to what they termed an imperial presidency. However neoconservative intellectual and Harvard professor Harvey Mansfield one of the chief proponents of the theory pointed out why such a criticism does not make sense:

“If the executive is an adversary of the law, how can he carry out the function of enforcing it?”

Further reading

• Calabresi, Steven G. and Christopher S. Yoo. "The Unitary Executive During the First Half-Century." Case Western Reserve Law Review 47 (1997): 1451–1561.
• Calabresi, Steven G. and Christopher S. Yoo. "The Unitary Executive During the Second Half-Century." Harvard Journal of Law & Public Policy 26 (2003): 667–801.
• Mansfield, Harvey C., Jr. Taming the Sovereign: The Ambivalence of Modern Executive Power (1993).
• Yoo, Christopher, Steven G. Calabresi, and Laurence D. Nee. "The Unitary Executive During the Third Half-Century, 1889–1945." Notre Dame Law Review 80 (2004): 1–109.
• Yoo, Christopher, Steven G. Calabresi and Anthony J. Colangelo. "The Unitary Executive in the Modern Era, 1945–2004." Iowa Law Review 90 (2005): 601–731.