Current & Recent Research at Penn Law
|Return to Search|
Yoo, Christopher S.
Calabresi, Steven G.
|Citation:||The Unitary Executive During the Second Half-Century, 26 HARV. J.L. & PUB. POL'Y 667 (2003) (with Steven G. Calabresi).|
|Subjects:|| Government and Legislation
Law and History
Law and Regulatory Systems
Public Law and the Constitution
|Keywords:|| Legal History
Separation of Powers
|Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress’s authority to employ devices such as special counsels and independent agencies to restrict the President’s control over the administration of the law. The initial debate focused on whether the Constitution rejected the “executive by committee” employed by the Articles of the Confederation in favor of a “unitary executive,” in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a “constitutional moment” that ratified major changes in the distribution of power within the federal government. To date, however, a complete assessment of the historical record has yet to appear.
This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1837 and 1889, beginning with the Administration of Martin Van Buren, ending with the first Administration of Grover Cleveland, and paying particular attention to one of the defining moments in the history of the unitary executive: the impeachment of Andrew Johnson. The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.