January 10, 2006

What the Unitary Executive Theory Is and Isn't

Some reporters have been treating Alito’s adherence to the unitary executive theory as a hint he will support President Bush’s most expansive claims to executive power. But is it? No.

The basic concept of the unitary executive goes like this: When the framers gave power to Congress, they specified Congress could exercise only the powers specifically enumerated (“herein granted). By contrast, when the framers gave the executive branch power, they didn’t use the same magic words. The natural implication, the theory goes, is that the powers given to the President are broader and “fuzzier” than the crisp, strictly limited powers exercised by Congress. When Congress and the President clash, the different nature of their powers means that hard cases must be resolved in favor of executive leeway, and against a legislative override.

Let’s survey an array of positions (necessarily oversimplified) that a unitary executive adherent might take:

1. Executive Control over Inferior Officers. While Congress has substantial power over the appointment of executive officers, unitarians believe the Constitution’s silence about their removal means that the President can remove the ones who won’t follow his orders. Most adherents of the unitary executive, very likely including Judge Alito, therefore question the constitutionality of so-called independent agencies and the Office of the Independent Counsel. Here, however, the consensus ends.

2. Enemy Detention. In Hamdi v. Rumsfeld, Justice Scalia—one of the most prominent supporters of the unitary executive—announced his opposition to the indefinite detention of American “enemy combatants.” His argument is based on the Habeas Suspension Clause, which he reads, in light of originalist evidence and its placement in Article I, to give Congress alone power over detained persons' access to courts. Because the meaning of the Suspension Clause is clear to Justice Scalia, the teachings of unitary executive theory—that the executive gets leeway in hard cases―doesn’t come into play for him.

3. Search and Seizure. Nor need fans of the unitary executive support the NSA spying program. If you believe the Fourth Amendment applies to any surveillance of domestic residents, then both the President and Congress must adhere to its basic logic: that searches and seizures be reasonable and reviewable by courts. When a search implicates national security, a unitarian may think the executive deserves some deference when determining what’s reasonable. But he might also argue that an executive interpretation of the Fourth Amendment isn’t reasonable if the executive doesn’t supply an intelligible principle that limits executive discretion or that makes independent judicial oversight possible. Because the NSA program doesn’t meet that standard, it would fail—even giving all possible leeway to the executive.

4. Torture. Here, a unitarian might turn to the Define and Punish Clause, which says Congress has the power to define and punish offenses against the law of nations. It is now commonly believed that Congress’s control over such offenses reaches treatment of captured belligerents during hostile action. Just as Justice Scalia considers the Suspension Clause a bright-line carve-out from executive discretion, a unitarian might consider the Define and Punish Clause another “carve out.” Because Congress has primacy in this area, the executive wouldn’t be able to evade limits on interrogation methods enacted by Congress. Other provisions that apply to the President and Congress equally—including the Eighth Amendment and the Fifth Amendment's Due Process Clause―might also impose limits on executive interrogation methods.

5. Military Tribunals. A unitarian might give the executive some discretion to try belligerents captured outside of U.S. territory. But, again, some unitarians might consider the Define and Punish Clause a “carve out” that limits executive leeway to define the international laws triable in such commissions (or to set procedures that may affect the outcome such cases). Unitarian theory also doesn’t speak to the scope and content of the Confrontation Clause and Due Process Clauses. Indeed, those clauses (Define and Punish, Confrontation, and Due Process) underpin the arguments of Neal Katyal, the professor (and former Department of Justice official) challenging the military tribunals in Guantanamo. Katyal is a self-described believer in the unitary executive.

I don’t know what Alito’s views are on these questions. But the simple fact he believes in the unitary executive doesn’t tell us much.

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