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John Yoo on Calabresi & Christopher Yoo on the Unitary Executive

By Lawrence Solum

John Yoo (University of California at Berkeley School of Law) has posted Unitary, Executive, or Both? (University of Chicago Law Review, Vol. 76, 2009) on SSRN. Here is the abstract:

This essay argues that the ?unitary executive? of the American Constitution includes both a procedural component (the President may remove subordinate officers) and a substantive component (the President possesses unenumerated powers through Article II?s vesting of the executive power). It reviews The Unitary Executive, by Professors Steven Calabresi and Christopher Yoo, which maintains that no President has consented to limitations on his authority to direct and remove subordinate officials. It praises their comprehensive effort to examine each presidential administration, but finds that the survey should have focused more attention on moments, such as Franklin Roosevelt?s acceptance of the independence of New Deal agencies or Jimmy Carter?s approval of the Ethics in Government Act, that contradict their claim of universal practice.

The Unitary Executive makes a case for ?unitary? - but not for ?executive.? This essay criticizes the notion that the removal power can be thought of as separate and independent from the President?s substantive powers. The very arguments made for the procedural unitary executive derive from Alexander Hamilton?s theory of constitutional construction, which were originally used to justify president?s powers in foreign affairs and national security. Historical practice shows more than executive husbanding of the removal power; it suggests that our most successful presidents responded to great challenges using their substantive powers as Chief Executive and Commander in Chief. For example, George Washington?s declaration of neutrality in the wars of the French Revolution depended not on the power of removal, but on an implicit executive authority to set and conduct foreign policy. In purchasing Louisiana, Thomas Jefferson - who believed a constitutional amendment was required to acquire new territory - claimed that unforeseen circumstances gave the president authority to act outside the Constitution in order to protect the greater good. And Abraham Lincoln used his Chief Executive and Commander-in-Chief powers to oppose secession, raise an army, conduct war, suspend habeas corpus, and emancipate the slaves.

Full post as published by Legal Theory Blog on January 27, 2010 (boomark / email).