Talk:Unitary executive theory

Need for some practical points on presidential limits

In practice the President does not have direct control over many agencies and activities even in the executive branch:

• agencies whose heads have fixed terms, notably those whose heads were confirmed under the president's predecessor
• military decisions in the field
• the civil service, protected by a distinct set of rules -- indeed, rather few federal government employees have an obligation to follow a President's instructions directly
• the Federal Reserve, SEC FCC, post office, and other agencies with a board or a private-public partnership

The article appears to distinguish the president's power in a theoretical way only from those of the other branches ; if that's the relevant distinction here let's at least clarify explicitly the scope of the discussion excludes those limits on presidential action listed just above. -- econterms (talk) 00:11, 27 November 2017 (UTC)

According to the UET, the president should retain absolute control over these agencies insofar they serve to carry out laws with some hardliners going to far as to say the president carrying out regulations enforced by them. It is a difficult compromise between Congress and the President that has been strained ever since these agencies were granted more power in response to the Great Depression. Under our current constitutional system the president appoints who carries out these independent agencies and had little control or oversight of them because of statutory limits passed by Congress. I hope to make a few edits that delve into more detail/clarity in later revisions.

FictiousLibrarian (talk). 21:28, 19 May 2024 (UTC)

Notes on direct accountability of the members of the executive branch to We the People

Accountability of members of the government to We the People is a cornerstone of individual liberty in a free society with strong government. It should be evaluated as a reciprocal measure of a perceived risk that the particularly organized government composed of particular individuals vested with particular powers is not directly accountable to We the People. Other metrics and considerations are of lesser deciding power while deliberating what permanent discretionary powers should particular segments of the government have.

There is this problem with the executive branch that, except for the Prez, no other member of it has been elected by the voters. This strongly suggests that executive powers should be squarely vested with the Prez (who has been directly elected by the voters) and not with the members of his administration (who were not elected). Such arrangement gives us the best chance that the Executive branch is de facto directly accountable to We the People and - therefore - has strong incentives to respect our individual rights and entertain our legitimate requests. On the other hand, permanently delegating substantial discretionary powers to unelected (and, perhaps, unremovable) bureaucrats will substantially diminish, if not eliminate, their direct accountability to We the People. Our individual liberties are not going to last long under such an arrangement as soon as the unaccountable bodies begin restricting our freedoms and denying our legitimate requests. And their supposedly corrupt propensities, if materialized, may prove hard to remedy in a quick and practical act.

The above argument, in addition to other arguments presented in the main article, provides strong and logical rationale in support of the strong unitary executive theory.172.88.197.74 (talk) 08:04, 16 September 2020 (UTC)

Wikipedia is not the place for original research. Do you have a link to a reliable source making this argument? Bonewah (talk) 16:42, 17 September 2020 (UTC)

Below is a collection of quotations from various sources regarding the utmost importance of accountability to the people in the context of executive power.

"It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it."

Plubius [Alexander Hamilton]

Federalist Papers: No. 70

The Executive Department Further Considered

"Hamilton argues that unity in the executive branch is a main ingredient for both energy and safety.[2][7][8] Energy arises from the proceedings of a single person, characterized by, "decision, activity, secrecy, and dispatch," while safety arises from the unitary executive's unconcealed accountability to the people."

Federalist No. 70

https://en.wikipedia.org/wiki/Federalist_No._70

"Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U. S. 200, 449 U. S. 211-217 (1980). A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, post at 487 U. S. 1020. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty."

Page 487 U. S. 710

U.S. Supreme Court

Morrison v. Olson, 487 U.S. 654 (1988)

Justice Scalia, dissenting

"But even if it were entirely evident that unfairness was in fact the result -- the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration -- there would be no one accountable to the public to whom the blame could be assigned.

I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution -- a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished."

Page 487 U. S. 731

U.S. Supreme Court

Morrison v. Olson, 487 U.S. 654 (1988)

Justice Scalia, dissenting

"Now, the Constitution established a single President, chosen by the nation, who would be obliged to take care that the laws are faithfully executed. But in order to fulfill that role, it’s necessary that the President had the responsibility and the control over the executive officers who would assist him in administering those laws. Now, I would submit that Humphrey’s Executor represents a significant departure from that constitutional scheme. That decision envisioned an administrative state that would wield significant governmental power independent of the President and with little forethought and accountability for the democratic process. "

[...]

Now, the President’s supervision is not just a matter of presidential power, but it’s also presidential accountability. It guarantees that the people may select the President and then hold him personally accountable for how his administration executes the federal law.

[...]

For these reasons, I don’t think that the vision of agency independence reflected in Humphrey’s Executor accurately describes the current state of the law. And while the decision remains in place, I think that in recent decades, we had seen a move towards greater presidential control and accountability. "

Hon. Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, United States Department of Justice

in Restoring the Executive Power: Revisiting Humphrey's Executor, Reviving the Unitary Executive

Executive Branch Review Week Webinar

https://fedsoc.org/events/restoring-the-executive-power-revisiting-humphrey-s-executor-reviving-the-unitary-executive

"Far more important, only if because they are so much more common, are the thousands of executive decisions made every year that are, because of Humphrey’s regime, unaccountable to the President and therefore the electorate. And that for me is what the debate over Humphrey’s is really about. It isn’t a question of presidential power. It’s a question of democratic power, of popular sovereignty. It’s a question of whether the American people have the power through their vote, or whether the power resides with a permanent ruling class in the economic, political, and social enclave of the federal city. And that is a very big question. "

Jesse Panuccio, Partner, Boies Schiller Flexner LLP, and former Acting Associate Attorney General, United States Department of Justice

in Restoring the Executive Power: Revisiting Humphrey's Executor, Reviving the Unitary Executive

Executive Branch Review Week Webinar

https://fedsoc.org/events/restoring-the-executive-power-revisiting-humphrey-s-executor-reviving-the-unitary-executive

"In this sense, the theoretical differences in the debate over the unitary executive may not come down to much in practical application. Under most any view, the president can legitimately exercise control over the rulemaking process. And this is as it should be, for many reasons. The most important of these -- perhaps counter-intuitively – is the check that clear responsibility provides over presidential power. Were authority shared among multiple persons in the executive branch, it would be relatively easy for the chief executive to avoid accountability for his actions. He would always be able to point his finger to some other officer, and mumble “my hands were tied.” But with ultimate authority vested in the president, he is held to account for decisions, enabling voters – as well as other policymakers – to assign blame or credit."

The Rulemaking Process and Unitary Executive Theory

Testimony before the Subcommittee on Commercial and Administrative Law

House Judiciary Committee May 6, 2008

James L. Gattuso Senior Research Fellow in Regulatory Policy

Thomas A. Roe Institute for Economic Policy Studies The Heritage Foundation

"Similarly, if the Justice Department is independent of the president, there can be no accountability to the people for the exercise of its powers. Here the problem is actually worse than that identified by Hamilton. He worried about the evasion of responsibility that could occur among executive officers answerable to the people. The contemporary view, however, sets up the attorney general — an unelected official — as the highest law enforcement authority. The only way the Justice Department can be disciplined by the kind of “responsibility” to the people that self-government requires is if it can be directed by the only elected executive branch official, the president."

No Easy Task for a President to "Abuse" His Authority Over the Justice Department

Commentary

Carson Holloway, Ph.D.

Visiting Scholar, 2014-15 Visiting Fellow in American Political Thought

The Heritage Foundation

"Political accountability lies at the very heart of the republican government envisioned by the Founding generation and carried into practice by the Constitution. The Founders argued that in order for republican governance to succeed, the governors must be selected by the governed and held to account by them. (16) In such a system, the people could effect their political will by electing those who promised to support favored policies and replacing those members of the government who imposed laws that the people did not support. "

Liberty requires accountability: checking delegations to independent agencies

The Free Library

2015 Harvard Society for Law and Public Policy, Inc.

https://www.thefreelibrary.com/Liberty+requires+accountability%3a+checking+delegations+to+independent...-a0418603381

172.88.197.74 (talk) 22:45, 17 September 2020 (UTC)

Do you have an edit in mind? If so, please detail it here. Bonewah (talk) 18:54, 18 September 2020 (UTC)

I can write a draft the following weekend and share with you, thank you. 172.88.197.74 (talk) 00:01, 19 September 2020 (UTC)

This is an interesting take. When I did research on this theory, I found that the UET began in the 1970-80s and works backwards. The position of the President as the fulcrum of political activity in the United States began after the Constitution was ratified and didn't really start escalating until FDR and especially during the Cold War. I am curious to see what you publish and the discussion that lies ahead. FictiousLibrarian (talk). 21:25, 19 May 2024 (UTC)

Lead should summarize criticism

@Just10A, I noticed you removed a lot of well-source critiques of the theory (it seems to have more criticism than support on balance and the lead should reflect that) and want to make sure that the LEDEFOLLOWSBODY.
We also should not be removing 'see also' wikilinks unless they are already in use in the article.
I also object to this being labeled as an 'academic article' as a reason not to include criticism from journalists who write for reliable publications. Superb Owl (talk) 15:56, 18 July 2024 (UTC)

1.) The edits were overall so politicized and over-incendiary that they do not even begin to approach NPOV.

2.) It is an academic topic. Many of the cites were by and large poor or miscited, with many of the sources not conforming to WP:RS.

3.) The "see also" editions have 0 standing, and the portion of the page "democratic backsliding" you are linking to for support was just recently edited to include it by yourself and before had no reference of UE theory.

4.)As nicely as I can possibly say it, a significant portion of the edits clearly reflect someone with a incomplete education/understanding of a complex academic topic.

5.) You are purporting yourself as retired.

While my edits did include some improvements and copyediting, the majority was a reversion to the old, much better done form. Particularly in the lead. Protocol dictates that controversial info be removed and page is reverted to earlier state in the event of debate. As a result, it will be put back. Just10A (talk) 16:28, 18 July 2024 (UTC)

It looks like we agree to disagree on quite a bit here.
1) This was a faithful summary of the sources
2) Which sources do not conform to WP:RS? All are perennial or academic sources from peer-reviewed academic journals with decent citation counts
3) If you disagree with that section on that article, please feel free to post on the talk page and discuss it. I see no issue with that section.
4) That's not a very nice thing to say
5) I'm not sure whether I have update my user page is relevant Superb Owl (talk) 17:07, 18 July 2024 (UTC)

Specific differences to address (I propose restoring these edits)

1) describing the theory as 'controversial' in the lead (will update this list with the citations making that claim)
2) mentioning the Opinions Clause and Necessary and Proper Clause in the lead
3) context of this theory in other democracies and states within the US in the lead
4) Erasure of Daniel Birk critique of King of England claims
5) Erasure of critiques in Perennially reliable media outlets of the theory from the article and the lead (The BBC, The Guardian, The Economist (op-ed), and The New Republic)
6) See also to section of Democratic backsliding in the United States that discusses the Unitary Executive Theory Superb Owl (talk) 17:30, 18 July 2024 (UTC)

I can answer most of your questions from the last 2 posts. I think most of the issues we are having stem from a few fundamental misunderstandings:

1.) The unitary executive theory ≠ the strong version of unitary executive theory. The vast majority of controversy and criticism is solely concerning the strong version. The theory as a whole is not controversial at all. A quote from the article already puts it nicely, so I'll just quote it "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version." I can tell you that is the current state of academic consensus. Essentially all of the criticisms are regarding just the strong version. So, when you call the theory as a whole controversial, or say it is authoritative, or all these other things, that is—for lack of a better term—simply false. Furthermore, the lede is about the theory as a whole, which is why all of the more detailed criticisms that only concern a single interpretation A.) are false if applied to the theory as a whole, and B.) don't belong in the lede at all.

2.) There is no intrinsic issue with mentioning the Opinion clause of Necessary and Proper clause. But the way it was earlier used was confusing and incomplete to the point of being borderline incorrect. A.)Both of these clauses on their face do not really limit presidential power. One is just something stating what a president "may," but is not bound to do, and the other is a clause from a totally different article which is about the powers of congress. B.) The usage of the clauses in their previous state again run into the same problems as my previous paragraph: Any conflict the clauses may have only apply to the strong version of the theory. So again, it doesn't inherently apply to the theory as a whole, which is uncontroversial. If the clauses were included properly, however, as they are later in the article, that is of course perfectly acceptable. As it stands however, inclusion in the lede seems unlikely for the reasons already stated.

3.) Again, A.) this only applies to the strong version, same issues as paragraph one. B.) the earlier statement(s) presuppose "similar" laws and "similar" democracies. Neither one of those are a given. The U.S. has a unique civic structure and any parallels are conjecture and should be classified as such, as they are later in the article.

4.) I think this brings up the next misunderstanding: Law review articles are not peer-reviewed journal articles in the traditional sense, and even if they were, WP:Scholarship mandates that great care should be taken. Not used excessively. However, they aren't peer reviewed journals in that sense. They do not match any category under WP:Scholarship, but the closest would be to "Dissertations" or "Predatory Journals," both of which reflect significant criticism. Law review articles are half the time little more than political op-eds, and the other half written by non-scholars. The Birk article is likely both, and while not totally barred from admission, it has a very high bar to meet that I, or really any objective scholar in my opinion, do not think it does.

5.) Same issues as paragraph 1. The majority of these publications are political, and are referring to the strong version of the theory, even when half the time they don't even describe the strong vs weak theory, because they are political instead of high-quality pieces. Either way, they probably don't belong at all, but definitely not in the lede, since it doesn't apply to the theory as a whole.

6.) Already addressed this, the backsliding article section was added recently by you. There is not a hint of such a connections on the pages prior to you adding it. As already addressed in paragraph 1, there is no intrinsic conflict between the traditional version of UE theory and checks and balances. It is totally in line with the framers vision, and thus, does not have any connection with "democratic backsliding" as the checks and balances of said democracy aren't being intruded upon in the first place.

I hope this cleared up any misconceptions. It's a very advanced academic legal topic, that has been only recently politicized in part. Just10A (talk) 19:39, 18 July 2024 (UTC)

1) (updated) This article does not define or distinguish between the two distinct options and in reality this is a spectrum of opinion. There is not one strong and one weak option, just stronger and weaker (in my reading of the sources). The common usage of the term is the strong version of the theory, which is why most discussion seems to be in reaction to that version.
2) I was simply using it as what opponents cited. Does not mean their intepretation is correct. Think it is worth including.
3) I do not understand this point - of course all countries are different, but that is discussed at-length in the review article and I think the lead should reflect the summary of the international and state-level context
4) (updated) While a law review is not peer-reviewed, they undergo an editorial process with fact-checking, especially for the more reputable law review journals. Also, the case for using them still seems strong per WP:Scholarship if I'm reading this correctly "Prefer secondary sources – Articles should rely on secondary sources whenever possible. For example, a paper reviewing existing research, a review article, monograph, or textbook is often better than a primary research paper."
5) (updated) Some are more political than others but this is a political article. Not sure how that is a disqualifier. BBC is hardly political. Will include in the criticism for now barring some evidence beyond your opinion that a perennially reliable source cannot be cited in this article. This article is not titled "Academic discussion of the unitary executive theory" and should include a range of reliable sources as a result
6) (updated) Lack of a connection before I started editing is not proof that there is no connection. A half-dozen sources discuss democracy implications and democratic backsliding specifically of this theory. I am going to restore this edit because clearly it is well-supported by many sources in both articles. If you disagree with the validity of specific sources, given how many are included, it would be preferable to flag them individually rather than another mass reversion or removal. Superb Owl (talk) 19:57, 18 July 2024 (UTC)

Definition

Ok, it seems like a lot of the back-and-forth @Just10A and I have been having traces back to how to define 'unitary executive theory.'

It appears to be a spectrum of opinions on how strong the president should be. A recent article I read defined the minimum version as "at a minimum, the President should be able to remove all executive-branch officers, including the heads of independent regulatory agencies, at any time and for any reason." This is hardly a universally-accepted idea. Superb Owl (talk) 20:07, 18 July 2024 (UTC)

It looks like some of the disconnect could be coming from the fact that I have been reading much more recent sources that seem to make less of a distinction between weak and strong. I have started adding some of those and scaling back the use of sources from the 90's to define a term that did not enter popular discourse until the 2000s. Hopefully with more and newer sources we can come to a better definition and address some of the issues accordingly, but for now, there seems to be the idea that the theory is associated with a stronger version than exists today while opponents wants less executive power than exists today. Superb Owl (talk) 23:39, 18 July 2024 (UTC)

@Superb Owl: Sunstein & Vermeule (2021) describes that as the minimum for the strongly unitary view of the presidency – not as the minimum for the weakly unitary view. (There is, however, a working paper from John C. Harrison arguing that Congress must give some tool to ensure presidential control of executive policy-making, though not necessarily removal.) The strong view is what is normally described as "the unitary executive theory" in scholarship.

During the Bush II years it became popular to describe basically every assertion of inherent executive authority as being "the unitary executive theory". In reality, things like Zivotofsky v. Kerry (2015) (recognizing inherent presidential power to recognize foreign nations against the view of Congress) are about the breadth of (inherent) executive power rather than the unitariness of executive power. SilverLocust 💬 00:49, 19 July 2024 (UTC)

Ah ok, that may be part of why this has been confusing is there is not a consistently applied definition and the term is (most often?) used as shorthand for the strong theory.
My instinct is to describe this article from the standpoint of the strong theory if that is how most reliable sources describe the theory, while mentioning that some authors distinguish between stronger and weaker versions. Curious to get definitions from people other than Cass Sunstein (a notable advocate for expanded presidential power when at OIRA) Superb Owl (talk) 02:38, 19 July 2024 (UTC)

Here is the footnote for the quote I added earlier on 'at a minimum...': See CALABRESI & Y OO , supra note 1, at 3-4; see also, e.g., Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 A LA. L. REV . 1205, 1225 (2014) (asserting that “[f]or adequate constitutional control of execution, the President must have the possibility of directing discretionary legal duties, even those assigned to other officers,” and thus must be able to remove all executive officers, including the heads of independent agencies); John Harrison, Addition by Subtraction, 92 VA. L. REV . 1853, 1859-62 (2006) (characterizing executive-branch officers as “agents” of the President whom the President must be able to remove if they do not retain his trust); cf. Morrison, 487 U.S. at 724 n.4 (Scalia, J., dissenting) (contending that the President must have “plenary power to remove [all] principal officers,” but that inferior officers can be made “removable for cause” so long as their appointing officers can dismiss them for “the failure to accept supervision” (emphasis omitted)). Superb Owl (talk) 02:45, 19 July 2024 (UTC)