The Administrative Presidency, Unilateral Power, and the Unitary Executive Theory

The essays in this symposium examine the administrative presidency strategy. That leadership strategy originally was initiated by the Richard M. Nixon administration as an attempt to accomplish administratively what it could not do legislatively (Nathan 1983; Waterman 1989). While the idea of the administrative presidency remains politically controversial, it is mostly based on solid constitutional principles. The strongest constitutional foundation is the president's ability to appoint loyalists to positions throughout the bureaucracy. While the debate over whether a president should promote loyalty rather than competence as the main criterion for making appointments is certainly controversial, there is a sound constitutional basis for this practice, even when presidents use their recess power to make late-term appointments. Presidents have been on solid legal ground as well in removing officials who were judged to be insufficiently loyal to them or to their policies. As long as these officials held appointments that ultimately were responsible to the president and served at the president's pleasure, they could be legally subject to removal at any time. Abuses of power occurred, however, when the Nixon administration attempted to remove civil servants or to deploy them to remote locations. Later, though, Ronald Reagan was able to use newly emerging powers emanating from Jimmy Carter-era civil service reform legislation to transfer career employees to less amenable locations, which forced them to resign if they wished not to relocate. These steps, taken during the Reagan administration, while politically controversial, were nonetheless legal, and the results often advanced the policy interests of the president. While controversial and maybe even undesirable, these personnel actions were legally permissible and fell within the ambit of executive authority delegated by the Civil Service Reform Act. A different idea, however, arose in the form of the unitary executive theory. It posits that the president has sole responsibility for the control and maintenance of the executive branch, further extending the debate on the scope of the president's removal power (Calabresi and Yoo 1997, 2003; Fitts 1996). Proponents of the theory have sought to repudiate the Supreme Court's decision in Humphrey's Executor v. United States (1935), which prohibits presidents from removing officials, such as the commissioners of the independent regulatory commissions, from office for political reasons. The unitary executive theory proclaims the president to be the sole responsible official for all that occurs within the executive branch. In consequence, all of the executive branch must be responsible to its chief executive. This new theory of presidential leadership, propounded in some conservative legal circles (the Federalist Society) and regularly cited by the George W. Bush administration in signing statements, has been presented as a legal justification for more expansive presidential power. In particular, it has increased the traditional authority presidents have employed since Nixon's presidency with regard to the administrative presidency strategy. It raises serious legal questions about the boundaries of presidential power and Congress's ability to limit presidential discretion. By asserting that Congress does not have the right to enact laws that limit the president's powers as chief executive or commander in chief, the unitary presidency provides presidents with broad unchecked power in the personnel removal area. This is but one way in which the unitary executive theory changes what, to date, has been a practice based on accepted constitutional premises. Another component of the administrative presidency approach is the use of the budget to control agencies. Presidents are on solid constitutional ground when they do so in consort with Congress by approving new spending limits in congressionally enacted legislation. …