Any anons have an opinion on the unitary executive theory?
We all know Dick Cheney ran the show.
Scalia was pro uet
The so-called unitary executive theory animates critics’ claims that the bill impermissibly curtails the President’s authority. Under this theory, any attempt to limit the President’s control over the executive branch is seen as unconstitutional. You may recall it rearing its head during George W. Bush’s presidency, as its adherents relied on it to justify the infamous “torture memo” drafted by White House counsel John Yoo, who argued, “The historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President. [. . .] Congress’s support for the President’s power suggests no limits on the Executive’s judgment whether to use military force in response to the national emergency.” Carried to its extreme, the unitary executive theory could potentially undermine a democracy.
The constitutional language in question reads: “The executive Power shall be vested in a President of the United States of America.” Scalia wrote in his Morrison dissent that “this does not mean some of the executive power, but all of the executive power.” Yet in Article I of the Constitution, the framers did use the word “all” to describe the legislative power vested in Congress. The word “all” does not, however, appear in the phrase regarding executive power. Most of the framers were skilled attorneys, and they must have appreciated the implications of excluding “all” in this context. They clearly did not intend for the President to hold all power to structure the executive branch of the government.
Scalia has tweaked the original language of the Constitution, for reasons purportedly to do with separation of powers. He writes:
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish – so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing . . . But this wolf comes as a wolf.