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.
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.
Several decades ago Scalia rightly critiqued, and the Supreme Court ultimately addressed, congressionally appointed special prosecutors undermining the President's authority with "fourth branch" agency heads claiming independence from both the Executive Branch and the Congress. The Executive itself needed a reconstitution of its jurisdiction. And while theoretically its very useful to try and "game-out" how the Executive should be allowed to function, I think it's worthwhile to consider how further empowering its authority plays out in the actual operation of government.
There are certain federal agencies--the Federal Reserve and FDIC for example--that depend on not only a limited independence from the Executive, but from the Congress as well. In the matters of the economy it seems obvious that certain functions should be placed as far as possible beyond political influence. If the Executive becomes aggressively political with such agencies a loss of confidence by market actors is a likely outcome. Moreover, if a President loses the faith of the public in such matters, such as Herbert Hoover did, attempts to restore economic confidence are doomed (Hoover's initiatives to restore faith in the country's banking system all failed). But the greatest threat must be the President removing agency heads for political purposes, and replacing them with political allies. Over-empowering the Executive has real world consequences and should be taken into account.
Unitary executive advocates like Vermeule (and their misinformed opponents like Lessig) often fail to grapple with the differing material sizes of each branch. A reasonable estimate is the Executive employs ~3.5 million people, while both the Legislative and Judicial ~30,000 each—an order of magnitude difference.
I buy that Lessig's mistaken understanding of the vertical v. horizontal distinction with the "unitary executive" issue, but the plain consequence is that the theory gives any US President material power over 98.3% of the actual flesh and agency of the government to do actual things, including its entire means of violence (Pentagon). We might wish this not to be the case, but it is currently true.
From a basic "natural law" perspective, how do we deal with this "natural" fact? How do we recognize the imbalance here? Does it matter? Does it not? What should reason tell us?
My guess is the answer will be, "Well, the Legislative represents all Americans!" To this I would say that, like the swollen Executive, the plain fact is that this is no longer true to anyone who pays attention. So, then what? Does the your theory hold up?
Sadly all the wars are forcing me to examine other issues of executive power. I'm sure your book is brilliant, incisive, insightful; i look forward to reading it -- later. Ukraine will win.
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.
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.
Several decades ago Scalia rightly critiqued, and the Supreme Court ultimately addressed, congressionally appointed special prosecutors undermining the President's authority with "fourth branch" agency heads claiming independence from both the Executive Branch and the Congress. The Executive itself needed a reconstitution of its jurisdiction. And while theoretically its very useful to try and "game-out" how the Executive should be allowed to function, I think it's worthwhile to consider how further empowering its authority plays out in the actual operation of government.
There are certain federal agencies--the Federal Reserve and FDIC for example--that depend on not only a limited independence from the Executive, but from the Congress as well. In the matters of the economy it seems obvious that certain functions should be placed as far as possible beyond political influence. If the Executive becomes aggressively political with such agencies a loss of confidence by market actors is a likely outcome. Moreover, if a President loses the faith of the public in such matters, such as Herbert Hoover did, attempts to restore economic confidence are doomed (Hoover's initiatives to restore faith in the country's banking system all failed). But the greatest threat must be the President removing agency heads for political purposes, and replacing them with political allies. Over-empowering the Executive has real world consequences and should be taken into account.
Unitary executive advocates like Vermeule (and their misinformed opponents like Lessig) often fail to grapple with the differing material sizes of each branch. A reasonable estimate is the Executive employs ~3.5 million people, while both the Legislative and Judicial ~30,000 each—an order of magnitude difference.
I buy that Lessig's mistaken understanding of the vertical v. horizontal distinction with the "unitary executive" issue, but the plain consequence is that the theory gives any US President material power over 98.3% of the actual flesh and agency of the government to do actual things, including its entire means of violence (Pentagon). We might wish this not to be the case, but it is currently true.
From a basic "natural law" perspective, how do we deal with this "natural" fact? How do we recognize the imbalance here? Does it matter? Does it not? What should reason tell us?
My guess is the answer will be, "Well, the Legislative represents all Americans!" To this I would say that, like the swollen Executive, the plain fact is that this is no longer true to anyone who pays attention. So, then what? Does the your theory hold up?
Back in the real world, I wrote a whole book that starts from that natural fact: https://www.hup.harvard.edu/books/9780674971448
Sadly all the wars are forcing me to examine other issues of executive power. I'm sure your book is brilliant, incisive, insightful; i look forward to reading it -- later. Ukraine will win.