Document Type
Article
Publication Date
2005
Abstract
Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor of a unitary executive is foreclosed by established practice. Others, led by Bruce Ackerman, claim that the New Deal represented a "constitutional moment" that ratified big changes in the distribution of power within the federal government. Still others argue that the added policymaking role of the modern administrative state means Congress ought to be able to impose greater limits on presidential control over the execution of the law. To date, however, a full assessment of the historical record has yet to appear.
This Article is part of a larger project offering a comprehensive chronicle of the battles between the president and Congress over control of the administration of federal law. It reviews the period between 1945 and 2004, paying particular attention to the Clinton impeachment and the lapse of the independent-counsel statute. The record shows that presidents from Harry S. Truman through George W Bush consistently defended the unitariness of the executive branch, vitiating any claim that a custom of allowing congressional incursions on the unitary executive has emerged. In fact, the episodes discussed herein eloquently illustrate both the legal and the normative arguments supporting the unitary executive.
Keywords
legal history, constitutional inteerpretation, separation of powers, executive power, presidency, administrative law
Publication Title
Iowa Law Review
Repository Citation
Yoo, Christopher S.; Calabresi, Steven G.; and Colangelo, Anthony J., "The Unitary Executive in the Modern Era, 1945–2004" (2005). All Faculty Scholarship. 2618.
https://scholarship.law.upenn.edu/faculty_scholarship/2618
Included in
American Politics Commons, Constitutional Law Commons, Legal History Commons, Legislation Commons, Political Theory Commons, President/Executive Department Commons, Public Law and Legal Theory Commons
Publication Citation
90 Iowa L. Rev. 601 (2005)