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Eric Engle's avatar

I look at the constitution: do I see "two hats" or "unitary executive"? Nope! I look to legal practice in the USA and elsewhere and readily find universal rules like: the ministerial versus sovereign distinction. The president in principle is a tyrant which is exactly why his power of life and death is carefully trammelled: a sovereign abroad. It is the power of war; also, the power to execute capital and corporal punishment for those few federal crimes as well as deprivations of liberty, impositions of taxation: it is the power to literally execute. The entirety of the US design is to have a fierce tyrant outside US borders to react quickly and decisively in a hostile world, a world I know well. This capacity to speak with one decisive deadly voice abroad is one of the features unique to the USA's presidential model. Ministerial foreign policy systems are divisive riven by faction and believe you me are exactly why German foreign policy was able to act so self-destructively. Ministerial models are also explain the paralysis of Italian parliaments. Yet, this tyrant abroad, the 霸王, is domestically limited to "merely" implementing the will of congress. Yet, the nature of his execution of law is such that he must have free reign to constitute his subordinates largely as he sees fit.

It is this duality of his roles and the structure of his might that explains why others may wish to "interpret" non existent terms into the written law. Hopefully a clearer comprehension of the deadly nature of the federal executives' power, and its consequent domestic limitations may enlighten those who bandy fancy theories about without much real world experience as to exactly what is at stake. Words matter.

Outbound.

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Richard Friedman's avatar

Let’s cut to the chase. The point of the unitary executive theory is that the president can hire and fire anyone for any reason so long as the individual is in the executive branch. The question then becomes who is in the executive branch. Are independent agencies in the executive branch or are they perhaps extensions of the legislative branch? One or the other because the constitution only created three branches, right? There are no intellectually satisfying answers to such questions because modern issues don’t fit comfortably into a document made for a simpler time.

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