Day: June 18, 2025

In “Democratic Efficacy and the Unitary Executive,” James G. Rogers argues that the unitary executive enhances the democratic accountability of the presidency.

Rogers defines unitary executive, however, as only extending to the president’s constitutional right to remove inferior officials. But as a matter of theory, we cannot divorce the independence of the executive branch from its substance. While the Framers wanted to restore unity and independence to the executive branch, they also remained focused on the actual powers to be given to the president. In The Federalist Papers, Alexander Hamilton observed that the president had to be directly elected, for example, rather than chosen by the legislature, and should be one man, rather than multiple leaders, to allow the executive to act with energy and speed. But Hamilton also wrote there that the president would possess well-understood powers, even in—or especially in—the area of foreign affairs and national security. “Of all the cares or concerns of government,” Hamilton wrote in Federalist #74, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

The very theory of constitutional interpretation that established the unitary executive did not arise in the context of the removal power. The logic, announced most spectacularly by Justice Scalia in his dissent in Morrison v. Olson, maintains that Article II, § 1’s Vesting Clause grants all of the federal executive power to the president alone, subject only to narrow, explicit exceptions in the text itself. Under the pseudonym of Pacificus, Hamilton advanced the theory in defense of President George Washington’s declaration of neutrality in the wars of the French Revolution. The authority to proclaim neutrality did not depend on the president’s power of removal, but on an implicit executive authority to set and conduct foreign policy on behalf of the nation.

The story of the presidency has not been one of whether the president is really the chief human resources officer of the executive branch. The central element of the presidency has been the growth of its executive powers, not its powers of management. The Framers created the presidency so that a branch of the government would always be “in being” and could exercise substantive powers in times of crisis and emergency. Indeed, the basic theory of the unitary executive was born not out of a debate over removal, but over President Washington’s declaration of American neutrality during the wars of the French Revolution. Our greatest presidents failed because they carefully husbanded the removal power, but because they responded to great challenges using every tool at their disposal, including their substantive powers as chief executive and commander in chief. Authority through the removal and command of subordinates, no doubt, was an element of executive power, but it was secondary to the more important issue—the scope of the president’s constitutional authorities.

It is true that the revolutionaries rebelled against King George III and his perceived oppressions of the colonies, but it does not follow that they opposed the idea of executive power. To most of those who gathered in Philadelphia in the summer of 1787, post-Revolutionary efforts by the states to allow only weak executives with fragmented functions and powers had largely failed. Undermining the integrity of the executive branch had led to unstable, oppressive legislatures. The drafters of the Constitution came to Philadelphia in large part to restore the independence and unity of the executive branch—a republican, not a royal, restoration.

Independence put American theories of governance to the test, and they failed miserably. The Revolutionaries established one national charter, the Articles of Confederation, which soon proved crippled from lack of executive organization and leadership. The revolutionists wrote their state constitutions to undermine the structural integrity of the executive branch, and the results were legislative abuse, special-interest laws, and weak governments. Dissatisfaction with this state of affairs, even in a postwar time of relative peace and prosperity, led American nationalists to draft a new Constitution that would create a stronger, more independent executive branch within a more powerful national form of government. 

Why? As Gordon Wood has argued, the Framers believed that the 1776 constitutions had been the product of excessive revolutionary fervor. Unchecked by independent executives and judiciaries, the state legislatures had passed legislation infringing property rights, cancelling debts, and oppressing minorities. Factions, or special-interest groups, working at the expense of the broader public, had arisen. Unrestrained democracy had produced sharp and abrupt swings in policy that destabilized the newly independent states. The movement to restrain out-of-control legislatures, at both the state and national levels, proved so strong that Wood has likened it to a “Thermidorian” reaction. The object of this constitutional counterrevolution was a restored executive to check the excesses of the legislature, control law enforcement, appoint and manage government personnel, and conduct war and foreign relations.

The revolutionary state constitutions had created obstacles to good government, persuading the Convention delegates that a strong executive and republican government were not incompatible but mutually reinforcing. “A feeble execution is but another phrase for a bad execution,” Hamilton argued in Federalist #70, “and a government ill executed, whatever it may be in theory, must be in practice a bad government.” “Good government” required “energy in the executive,” and a vigorous president was now seen as “essential to the protection of the community against foreign attacks” and “the steady administration of the laws.” 

It would be short-sighted to focus only on unity and independence to the exclusion of one of Hamilton’s other pillars—competent powers. In beginning his discussion of the president’s powers in Federalist #72, Hamilton observed that the “administration of government” falls “peculiarly within the province of the executive department.” It included the conduct of foreign affairs, the preparation of the budget, the expenditure of appropriated funds, the direction of the military, and “the operations of war.” Chief among the president’s enumerated powers was law enforcement. “The execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate,” Hamilton observed. The general grant of the executive power and the duty to “take Care that the Laws be faithfully executed” both restrict and empower the president. They make clear that the president cannot suspend the law of the land at his whim, as British kings had, but they also give the president authority both to enforce the law and to interpret it. Enforcing the law gives the president the right to compel the obedience of private individuals and even states to the Constitution, treaties, and acts of Congress.

At the time of the Constitution’s framing, executive power was also understood to include the war, treaty, and other general foreign affairs powers. Political theory developed by thinkers such as John Locke, Baron de Montesquieu, and William Blackstone, as well as Anglo-American constitutional history from the seventeenth century to the time of the framing, established that foreign affairs were the province of the executive branch of government. Hamilton and the other Federalists did not look to the executive to manage war and peace for tradition’s sake. They understood the executive to be functionally best matched in speed, unity, and decisiveness to the high-stakes nature of foreign affairs. Threats to national security led to greater centralization of foreign affairs power in the executive. Article II gave the president the roles of commander in chief and chief executive. “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand,” Hamilton wrote in Federalist #74. “The direction of war implies the direction of the common strength,” he continued, “and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”

Rogers only incompletely advances the idea of a unitary executive. He argues for “unitary,” but not for “executive” in full. “The Executive Power,” as vested in the president by the Constitution, encompasses much more than managing federal employees. Article II vests powers of substance that come to the fore during crises. Some of our greatest presidents have accessed those grants to the great benefit of the nation, such as Washington in declaring neutrality, Jefferson in buying Louisiana, Lincoln in winning the Civil War, and FDR in preparing for World War II. Presidents can err when they misread conditions or turn their powers to purposes not envisioned by the Constitution. But as our nation struggles yet again with unprecedented threats to our national security, the need for the Constitution’s executive power becomes clear.