Unitary Executive Theory and Congressional Subpoenas

The Unitary Executive theory clashes with Congressional oversight investigations

(Editor’s Note: Viewpoint submissions on this and other topics are always welcome as part of our goal to encourage community discussion and exchange of perspectives.)

June 16, 2019 — President Trump’s refusal to cooperate with Congressional oversight investigations brings the theory of “Unitary Executive” into play. The theory contends that the president’s control over the executive branch has no limits and attempts to do so are unconstitutional. This authoritarian view of the presidency is based on the words “the” and “a” as used in the Constitution’s Article II phrase “The executive power shall be vested in a President”.

Emphasizing “the” and “a,” proponents of the theory argue that members of the executive branch are solely accountable to the president alone. Therefore, the president may order any executive branch employee to exercise or not exercise any official function as the president personally thinks best.

The more traditional argument holds that because Article I gives Congress the authority to enact laws “necessary and proper” for executing all powers that the Constitution vests in “any department or officer” of “the government of the United States,” Congress has a share of the power to direct those “departments and officers” in the executive as well as the legislative branch.

Because Article ll doesn’t speak directly of a “unitary executive,” its use of the term “presidential executive” power can be read to distinguish “The executive power shall be vested in a President” from an “executive council” as was established by several revolutionary-era state constitutions.

This reading is more consistent with the Constitution’s idea that those actions that aren’t legislative or judicial be carried out by a president co-equal with the two other branches and subject to the scheme of checks and balances preventing one branch from becoming too powerful.

Especially in the context of an overarching concern that an executive might become another King George III.

The Unitary Executive theory, supported by Attorney General William Barr, clashes with Congressional oversight investigations because it is at the root of the president’s executive-privilege resistance to congressional subpoena demands.

The presidential order to the entire executive branch to refuse to provide any information to Congress is an expansion of the argument that the constitutional grant of executive power provides exclusive executive power. More traditionally, assertion of this power has been limited to times of creditable national crisis and emergency.

Consequently, the assertion of executive privilege over confidential discussions with advisers, present and former, and any information requested by Congress that the president may deem privileged is executive privilege on steroids; a heedless disregard of Congressional oversight authority and executive tradition; one that if left standing along with other practices derided by Mr. Trump will further undermine the Founders’ checks and balances game plan.


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