Koppelman's article is confusing given the promise that it had to place the unitary executive theory into context for the typical reader. Instead, the article engages in the same obfuscation of the theory as any other political opponent of the current administration that seeks to tie the theory to the current administration.
He writes that the current episode, "to some," seems to stem from the administration's grasp upon the "radical 'unitary executive' theory, which exalts the power of the presidency over the other branches of government and has played a role in many controversial administration decisions." He then demonstrates how attorneys from previous administrations, including the Clinton Justice Department, do not see the current Bush position on the controversy as that controversial. The reason why they do not see it as controversial? Well because the theory has been institutionalized since the Reagan administration inside the JD, if not elsewhere inside the Executive Branch. The theory, to restate, obliges the president the power to supervise subordinate officials, to hire and fire at will, and to preserve, protect, and defend the Constitution at all costs. Thus it is not seen as unreasonable that Justice officials would object to an order from the Congress telling US attorneys who they should or should not prosecute. The attorneys, as you know, fall under the supervision of the president, not the Congress. However, the theory, and those who believe in it, recognize that there is a political process that runs parallel to the constitutional process, which means that sometimes, taking an absolute and unbending position on principle may cause greater institutional damage than negotiating a compromise. And as will happen in the current episode, as it has in the past, is the administration and the Congress will work out a deal that satisfies both sides.
And not to beat a dead horse, but it is these ad hoc, off the cuff definitions that continue to obscure what the unitary executive is. According to Koppelman, the UE "exalts the power of the presidency over the other branches of government..." Nothing could be further from the truth. In fact, the UE was originally meant to be a defensive theory of presidential power, designed to protect the institution of the presidency from an over zealous and aggressive Congress. As an example, witness the OLC opinion written in 1989 by William Barr, who led the OLC under the first Bush administration. Titled "Common Legislative Encroachments on Executive Branch Authority," the opinion outlines, for the various agencies, commissions, and departments, ten different ways that the Congress has impeded Executive Branch prerogatives. Just for your references, the ten:
- Interference with the President's Appointment Power
- Hybrid Commissions--those commissions with both executive and legislative functions
- Attempts to Constrain the Removal Power
- Micromanagement of the Executive Branch
- Attempts to Gain Access to Sensitive Executive Branch Information
- Concurrent Reporting Requirements
- Legislative Vetoes
- Requirements that Legislation be Submitted to Congress
- Attempts to Restrict the President's Foreign Affairs Powers
- Restrictions on the President's Power to Make Recess Appointments
Since this theory of power is going to be with us for the foreseeable future, isn't it important that opinion leaders like Mr. Koppelman and others get the theory right, and not use throwaway lines radical or as others, imperial?
