Absolute power. That’s the wet dream of any president or head of government. It isn’t always within their reach, but they lust it. The unitary executive theory reflects this aspiration in the US, and we’re going to see its relation with Carl Schmitt.
Today, I want to speak to you about a controversial matter in political and legal terms. It’s controversial because of its political implications, but also due to its consequences in constitutional terms. The unitary executive theory is part of the constitutional debates in the US regarding presidential powers. It isn’t well-known, but its usage to strengthen the Presidency in critical moments has been decisive.
In this episode, I want to address this theory and the thread that links it with the German jurist Carl Schmitt. We’ll talk about this at the end, so keep on watching.
First of all, what is the unitary executive theory? It is a theory of US constitutional law. It holds that the US president possesses the power to control the entire executive branch. It bases its reasoning on Article Two of the US Constitution, which vests the US’s executive power in the president. What does it mean? It means the power of kings, pharaohs, and dictators. A strongly unitary executive means an expanded power. So, Congress’s power is dwarfed by the Presidency because the former has severe limitations to interfere with intra-executive decision-making, such as firing executive branch officials. Therefore, the president controls policy-making by all executive agencies within limits set for those agencies by Congress.
However, to have a clearer picture of this matter, let’s see what the Constitution says in Article two.
“The executive Power shall be vested in a President of the United States of America.”
Defenders of the unitary executive theory argue that this language creates a hierarchical, unified executive department under the direct control of the president. Besides, the Take Care Clause that states, “the president shall take care that the laws be faithfully executed…” constitutes another reason to support the general principle that the Presidency wields the power of the whole executive branch. However, this point of view is controversial insofar as its most extreme form leads to a covered constitutional dictatorship. In that case, neither Congress nor the federal courts can tell the president what to do or how to do it, especially regarding national security matters.
Those who advocate for the unitary theory in its strong form argue that the president possesses all of the executive power and can, therefore, control subordinate officers and agencies of the executive branch. That entails Congress has important limitations to remove executive agencies or officers. In this way, independent agencies and counsels exercise discretionary executive power not controlled by the president.
It may seem this debate about the president’s powers is recent, and they respond to the ambition of newcomers in US politics. Yet, the reality is quite different than we imagine. There were debates on this issue in the late eighteenth century between framers. Indeed, we can see two sides. On the one hand, we find those who campaigned for a unitary executive. On the other hand, we find the opponents of this constitutional stance and advocated for an executive council or several executives.
What lesson can we draw from this debate? The triumph of those who defended a unitary executive headed by the US president compels us to re-examine the reasons that led them to this decision.
They emphasized the advantages of a single chief executive, including greater accountability, vigor, decisiveness, and responsibility. That’s the case of James Wilson, who developed his reasoning by arguing the importance of having only one executive authority because it provides security and trust. Others, such as Federal Farmer, the alias of an Anti-Federalist, set forth their reasons to support this kind of executive. In this case, this author argued that a single person who superintends the execution of laws would be more efficient by acting with uniformity and promptitude. James Madison himself stressed another additional advantage of a unitary executive by claiming that it would be able to resist encroachments by the legislature.
Alexander Hamilton expressed his support for this form of the executive. He claimed that the legislative powers of Congress are limited to what is granted by the US Constitution. That differs from the executive powers of the Presidency because an enumeration does not expressly restrict them.
Aside from the criticism of this theory in our current days, it has been used by different administrations to assert the presidential powers. That is the case of Regan’s administration. In 1987, this president issued a signing statement that declared: “If this provision were interpreted otherwise, so as to require the President to follow the orders of a subordinate, it would plainly constitute an unconstitutional infringement of the President’s authority as head of a unitary executive branch.” Later, the George W. Bush administration also made explicit reference to this theory of unitary executive. Indeed, it made this theory a common feature of signing statements. In this case, the Presidency took on the responsibility to interpret what is and is not constitutional when overseeing executive agencies’ actions, which represents a way of overstepping a duty that belongs to US courts jurisdiction.
Another aspect of this theory is its implementation in emergencies. Insofar as the US Constitution doesn’t include any comprehensive separate regime for emergencies, there is a legal loophole about the scope of the presidential powers in these cases. Some scholars believe that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined executive power. In this respect, Congress has delegated no less than 136 distinct statutory emergency powers to the president. They are available upon the declaration of an emergency. Only 13 of them require a confirmation from Congress. The remaining 123 don’t need further Congressional input because the president assumes them by an executive declaration. In addition to this, the presidential emergency powers are sweeping and dramatic insofar as they range from seizing control of the Internet to declaring martial law.
For this reason, we can claim that these expanded powers may work as a chance for some leaders in their attempt to consolidate power by taking advantage of extraordinary circumstances. At this point, I want to recall what Justice Robert H. Jackson said. He claimed that each emergency power “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Although this theory has been essential to strengthening the Presidency by expanding its powers, we can’t forget that things work differently than they seem at first sight. The president may concentrate a lot of formal power by resorting to specific legal provisions. However, things go in a different way behind the scenes, as I discussed on another occasion when I addressed the presidential powers.
Anyways, what matters here is the connection between Carl Schmitt and this theory of the unitary executive.
The distinction of friend and enemy is central in the Schmitt’s thought. This distinction stems from a decision. We could say a critical decision insofar as it determines who the enemy is, and establishes the way hostilities work in a specific place and moment. That connects with the way Schmitt understood sovereignty. He considered it the capacity to define who the enemy is for a political community. In this regard, he stressed the role of the executive in making such a decision. So, the president represents an effective element compared to deliberative institutions, such as the legislative power. All of this is related to the president’s capacity to exercise power without institutional and legal constraints, especially in extraordinary situations.
Schmitt always advocated for a strong executive, something in the same wave with his opposition to parliamentary systems. That led some authors to claim that Schmitt has influenced neoconservatism. The resort to extraordinary powers, the lamination of legal constraints to the executive activity, besides other exceptional measures, they all connect very well with the Schmitt’s point of view. That explains the implementation of highly controversial policies in the war on terror, which mimic Schmitt’s writings.
Therefore, the exceptional prerogatives that the president can exercise represent a clear connection with Schmitt’s theories, and his view on sovereignty. It’s something we witness in case of an emergency. These extraordinary situations are critical for the expansion of the executive power of the president, and show how the scope of its authority may override ordinary constraints. That explains why some authors spoke about an imperial Presidency as a result of exceeding constitutional limits and being out of control.
Question of the day! Do you think the US Presidency should need further constraints to limit its authority? Post your opinion in the comments section below, and I’ll check it out.
Bibliography used:
Schmitt, Carl, The Concept of the Political
Schmitt, Carl, On Dictatorship
Luban, David, “Carl Schmitt and the Critique of Lawfare” in Georgetown Public Law and Legal Theory 43(1-2), 2010, pp. 457-471
Abraham, David, “The Bush Regime from Elections to Detentions: A Moral Economy of Carl Schmitt and Human Rights” in University of Miami Legal Studies Research Paper No. 2007-20, 2010,
Horton, Scott, “The Return of Carl Schmitt“
Levinson, Sandy, “Thinking out loud about John Yoo (and about Carl Schmitt)”
Calabresi, Steven and Kevin Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary” in Harvard Law Review 105(6), 1992, pp. 1153-1216
Lessig, Lawrence and Cass R. Sunstein, “The President and the Administration” in Columbia Law Review 94(1), 1994
Ketchum, Ralph, (ed.), The Anti-Federalist Papers and the Constitutional Convention Debates
Wilson, James, “Pennsylvania Ratifying Convention”
Records of the Federal Convention
Ellis, Richard (ed.), Founding the American Presidency
Madison, James, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments” in The Federalist No. 51, 1788
Hamilton, Alexander, Pacificus Letters No. 1, 1793
Schlesinger, Arthur M., The Imperial Presidency
Goitein, Elizabeth, “The Alarming Scope of the President’s Emergency Powers” in The Atlantic, April 1, 2020, https://web.archive.org/web/20200401071344/
Barron, David J. and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb-A Constitutional History” in Harvard Law Review 121(4), 2008, pp. 941-1112
Kelley, Christopher, “Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency” in Annual Meeting of the Midwest Political Science Association, 2005
Barilleaux, Ryan and Christopher S. Kelley (eds.), The Unitary Executive and the Presidency
Van Bergen, Jennifer, “The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?” 2006
Lazarus, Edward, ” How Much Authority Does the President Possess When He Is Acting as “Commander In Chief”? Evaluating President Bush’s Claims Against a Key Supreme Court Executive Power Precedent“, 2006
Yoo, Christopher and Steven Calabresi, “The Unitary Executive during the Second Half-Century” in Harvard Journal of Law & Public Policy 26 (3), 2003, pp. 668-801
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