Any law restricting executive power makes no sense in the first place. Such a law would essentially be a contradiction in terms.

Unitary executive theory is something that has come to the forefront of politics several times in the last couple of years. It has support from a variety of public figures including Justice Samuel Alito, Harvard Professor Harvey Mansfield as well as former Attorney General Alberto Gonzalez. Although many people may have heard of it, or at least heard of issues that are currently being affected by it, you may not know what it actually is or what validates it. Let me first describe the theory and its foundations.

The unitary executive theory says that all executive power is ultimately divested in the president. This essentially means that all of the authority to enforce laws ultimately flows from the president, and therefore due to the separation of powers no other branch of government can be allowed to restrict the president’s executive power.

Now at this point the first question to come to mind would be, “Wouldn’t this mean that the president’s power would not be checked by the law?” Not exactly; in fact after I lay out the premises of the theory it will be clear that in context this question is really moot anyway.

The unitary executive theory is predicated on two clauses found in the Constitution. First there is the “vesting” clause, which states that the “executive Power shall be vested in a President of the United States of America.”

Secondly there is the “take care” clause which states that the “President shall take care that the laws be faithfully executed...” The argument is that since it is the executive branch’s duty to ensure that the laws are executed, and the power of the executive branch flows from the president, it is at the president’s discretion to determine the best way to execute those laws. Therefore, no law can be made that restricts the president’s decision on how best to enforce the law.

At this point the beauty and simplicity of theory emerges, and the aforementioned criticism can be seen as sort of an invalid critique. Essentially what it is stating is that in order for the law to be enforced it needs an enforcer, but if the law restricts the enforcer then it is in essence restricting its own enforcement.

Therefore, any law restricting executive power makes no sense in the first place. Such a law would essentially be a contradiction in terms. A law which says, “By this law this law shall not be enforced,” cannot really be thought of as law at all.

Unitary executive theory is not unconstitutional either. The Constitution is a law, and like any law it requires the president to enforce it.

As such the president’s authority, as unitary executive, cannot be thought of as unconstitutional, but rather extra-constitutional, as any law requires extralegal authority to be enforceable.

A good example demonstrating this principle would be a policeman speeding to catch a speeder. He needs to be able to enforce the speed limit from outside of the speed limit if he wishes to catch the speeder at all.

Therefore, the president cannot be thought of as acting unlawfully when he is doing what must be done to enforce the law. As Mansfield would put it, “If the executive is an adversary of the law, how can he carry out the function of enforcing it?” At this point the theory can be seen as logically correct.

As I understand it there has been much criticism of the current administration in regards to Bush’s use of the powers as allowed under the unitary executive theory. People often criticize President Bush over the USA PATRIOT Act, NSPD-51, wiretapping, extraordinary rendition and the like. However, as is apparent, these criticisms are unwarranted.

Now I am not at all happy about what many view as incompetence on Bush’s part, but I must at least commend him on not giving into the pressure to give up powers that are rightfully his. After all, if he is as incompetent as many suggest, would it not make sense to give him more tools to do his job instead of taking them away? He might need them.

> Comments