Reassessing the Unitary Executive: A Scholarly Update for the Trump Era

• In Event: Presidential Control Over the Policy Process

Abstract

This paper aims to reassess the “Unitary Executive” theory in light of recent academic and political developments. It seeks to build upon and update older scholarship (e.g., Calabresi and Yoo 2008, Barilleaux and Kelley 2010, and Barilleaux and Maxwell 2017) by examining developments from the end of George W. Bush’s presidency to the present day. The “Unitary Executive” is arguably one of the most important constitutional theories of the past several decades yet also one of the least understood. As first articulated by members of Ronald Ragan’s legal team in the 1980s, the unitary executive theory holds that the U.S. Constitution confers all executive power on the president and that it gives this power to him alone; there is no portion of executive power reserved or not conferred, and it is not shared with any other person or institution. As a result, according to the theory, the president should have complete control over the millions of people and the hundreds of institutions within the executive branch, including the Department of Justice and the FBI. This paper will examine that view in light of recent scholarly and political developments. It will seek to ascertain how the theory of the unitary executive has fared since George W. Bush’s avowedly unitary presidency, from its less prominent status under Barack Obama to its apparent revival under Donald Trump. Beyond tracking its recent development, the paper will examine whether the unitary executive of recent years has built upon or departed from its version of decades past. The paper should be of interest to scholars of the presidency, executive politics, and U.S. politics.

Author

• Graham G. Dodds, Concordia University