The Unitary Executive Theory and Executive Privilege

George W. Bush, our 43rd President, believes in the unitary executive theory. It is a controversial theory of constitutional interpretation that addresses aspects of the separation of powers. The theory argues for strict limits to the power of Congress to divest ("deprive") the President of control of the executive branch.

The strict limits derive from the Vesting Clause of Article II, which states, "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language, along with the Take Care Clause ([The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under direct control of the President." Congressional power to divest the President of control of the Executive branch is limited. The President possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the President.

This theory is associated with conservative thought and members of the Federalist Society and originally came to prominence in regard to the independent counsel law.

The Federalist Society for Law and Public Policy Studies, usually called simply the Federalist Society, began as a student organization that challenged the perceived orthodox American liberal ideology found in most law schools. Liberalism is a broad political and philosophical mindset favoring individual liberty and opposing restrictions on liberty, whether they come from established religion, from government regulation or from the existing class structure. The United States Declaration of Independence speaks of "unalienable rights" to "life, liberty and the pursuit of happiness and asserts that government may exist only with the "consent of the governed." The Preamble of the Constitution enumerates among its purposes to "secure the blessings of liberty to ourselves and our posterity"; the Bill of Rights contains numerous measures guaranteeing individual freedom, both from the authority of the state and the tyranny of the majority; and the Reconstruction Amendments after the Civil War freed the slaves and aimed to extend to them and to their descendants the same rights as other Americans. "Liberalism" in the sense of John Locke and freedom to acquire property was a parallel concept.

The Federalist Society states that it is founded on the principles that "the state exists to preserve freedom", that "the separation of governmental powers is central to our Constitution," and that the duty of the judicial branch is "to say what the law is, not what the law should be."

However, the traditional conservative view of a limited Presidency still had its defenders. Legal expert Morton Rosenberg of the non-partisan Congressional Reference Service contends that Alexander Hamilton believed that a unitary executive's power was "confined to commerce, banking and monetary policy." And in March 2007, last month(!), four prominent conservatives formed the American Freedom Agenda to protect the checks and balances of the Constitution from what they regard as dangerous advances by the President. Their mission statement as posted on their web site includes the following statement, "Especially since 9/11, the executive branch has chronically usurped legislative or judicial power and has repeatedly claimed that the President is the law. The constitutional grievances against the White House are chillingly reminiscent of the kingly abuses that provoked the Declaration of Independence."

What does the unitary executive theory have to do with executive privilege? Well, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other encroachments on their purview. (Purview--n. The extent or range of function, power or competence; scope.)

Now, executive privilege is not mentioned anywhere in the Constitution. Some consider it part of the separation of powers doctrine, and/or derived from the supremacy of the executive branch in its own area of Constitutional activity.

Presidents since Washington and Jefferson have argued that each branch of government may operate with some degree of freedom from the control of the supervision of the others. The Supreme Court confirmed the legitimacy of this doctrine in the United States v. Richard Nixon (418 U.S. 683 [1974]), but only to the extent of confirming that it can be invoked when the oversight of the executive branch would impair that branch's national security concerns. Before this case, executive privilege was an untested legal doctrine.

The United States v. Richard Nixon was a unanimous 8-0 decision. It set a crucial precedent limiting the power of any U.S. President. The remaining justice, William Rehnquist, recused himself.

What were the arguments that led to this decision? Nixon argued that he did not have to submit to a subpoena issued by independent counsel Leon Jaworski to turn over White House tapes related to the Watergate investigation. However, the White House stated he would abide by a "definitive order" by the Court. Those privy to court deliberations described unusual circumstances: that the majority held the subpoena to be enforceable; that a minority disagreed but were concerned that a split decision might be claimed by Nixon to fall short of "definitive" and thus increase the possibility of his defying the Court's authority, and that in practice the political dangers of such defiance were unacceptable. Therefore, the justices agreed upon a unanimous decision despite the diversity of their actual views in order to reduce the likelihood of such a "constitutional crisis."

The Supreme Court held that it has not only the power established in Marbury v. Madison (the basis for the exercise of judicial review of Federal Statutes by the Supreme Court of the United States) to rule a law invalid for conflicting with constitutional provisions, but also the power to decide how the Constitution limits the President's powers, that the Constitution provides for laws enforceable to a president, and that executive privilege does not apply to "demonstrably relevant" evidence in criminal cases.

"Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The Presidential need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises." -- Chief Justice Warren Burger.