The Unitary Executive during the Second Half-Century

By Calabresi, Steven G.; Yoo, Christopher S. | Harvard Journal of Law & Public Policy, Summer 2003 | Go to article overview

The Unitary Executive during the Second Half-Century


Calabresi, Steven G., Yoo, Christopher S., Harvard Journal of Law & Public Policy


I.   INTRODUCTION                                             668
II.  THE UNITARY EXECUTIVE DURING THE
     JACKSONIAN PERIOD, 1837-1861                             669
A.   Martin Van Buren                                         670
B.   William H. Harrison                                      678
C.   John Tyler                                               682
D.   James K. Polk                                            688
E.   Zachary Taylor                                           694
F.   Millard Fillmore                                         698
G.   Franklin Pierce                                          704
H.   James Buchanan                                           709
III. THE UNITARY EXECUTIVE DURING
     THE CIVIL WAR, 1861-1869                                 717
A.   Abraham Lincoln                                          718
B.   Andrew Johnson                                           737
C.   The Tenure of Office Act and the Impeachment
     of Andrew Johnson                                        746
IV.  THE UNITARY EXECUTIVE DURING
     THE GILDED AGE, 1869-1889                                759
A.   Ulysses S. Grant                                         759
B.   Rutherford B. Hayes                                      769
C.   James A. Garfield                                        780
D.   Chester A. Arthur                                        785
E.   Grover Cleveland                                         790
V.   CONCLUSION                                               801

I. INTRODUCTION

In The Unitary Executive During the First Half-Century, (1) we surveyed the first seven presidencies under the Constitution to determine the view of presidential power held by the incumbents during that period. We found that from 1789 to 1837, American presidents from Washington to Jackson strongly believed in a unitary executive of the kind defended by many scholars in recent years, including Professor Calabresi. (2) In particular, we established that the first seven presidents vigorously defended the president's unitary authority over the execution of federal law. We also concluded that many of these presidents believed the Vesting Clause of Article II was a direct grant of power to the president, as Professor Calabresi has previously argued in a debate with Professors Lawrence Lessig and Cass Sunstein. (3)

We now pick up our survey where we left off in the prior article and examine the presidencies during the second half-century of our nation's history to see what view these men held on the scope of the president's power to execute the law. In so doing, we focus primarily on three mechanisms generally viewed as essential to any theory of the unitary executive: the president's power to remove subordinate policy-making officials at will, the president's power to direct the manner in which subordinate officials exercise discretionary executive power, and the president's power to veto or nullify such officials' exercises of discretionary executive power. (4) We also employ the interpretive methodology known as "departmentalism" or "coordinate construction," which is based on the principle that all three branches of the federal government have the competency and responsibility to interpret the Constitution and that the meaning of the Constitution is determined through the dynamic interaction of all three branches. (5)

As we shall see, presidential power ebbed and flowed several times during the second fifty years under the Constitution. Congress reasserted itself and remained ascendant in the years following Andrew Jackson's presidency until the crisis of the Civil War, which led the country to look to the president for leadership once again. Throughout these various shifts in the relative power of the branches and regardless of which party was in power, presidents generally defended their sole authority to execute the federal laws. …

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