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The Unitary Executive During the Third Half-Century, 1889-1945

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The Unitary Executive During the Third Half-Century, 1889-1945 University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2005 The Unitary Executive During the Third Half-Century, 1889-1945 Christopher S. Yoo University of Pennsylvania Carey Law School Steven G. Calabresi Northwestern University Laurence D. Nee Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Constitutional Law Commons, Legal Commons, Legal History Commons, Legislation Commons, Political History Commons, President/Executive Department Commons, Public Law and Legal Theory Commons, and the United States History Commons Repository Citation Yoo, Christopher S.; Calabresi, Steven G.; and Nee, Laurence D., "The Unitary Executive During the Third Half-Century, 1889-1945" (2005). Faculty Scholarship at Penn Law. 785. https://scholarship.law.upenn.edu/faculty_scholarship/785 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. \\server05\productn\N\NDL\80-1\NDL101.txt unknown Seq: 1 8-DEC-04 13:46 ARTICLES THE UNITARY EXECUTIVE DURING THE THIRD HALF-CENTURY, 1889–1945 Christopher S. Yoo* Steven G. Calabresi† Laurence D. Nee‡ INTRODUCTION .................................................. 2 R I. BENJAMIN HARRISON ...................................... 10 R II. GROVER CLEVELAND’S SECOND TERM: 1893–1897 ........... 17 R III. WILLIAM MCKINLEY ....................................... 23 R IV. THEODORE ROOSEVELT ................................... 30 R V. WILLIAM H. TAFT......................................... 40 R VI. WOODROW WILSON ....................................... 47 R VII. WARREN G. HARDING ..................................... 58 R VIII. CALVIN COOLIDGE ........................................ 62 R IX. HERBERT C. HOOVER ..................................... 71 R X. FRANKLIN DELANO ROOSEVELT ............................ 78 R XI. THE BROWNLOW COMMITTEE AND THE REORGANIZATION ACT OF 1939 ................... 93 R CONCLUSION .................................................... 108 R 2004 Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee. The Authors hereby grant individuals and nonprofit institutions a license to reproduce this Article in whole or in part for educational purposes at or below cost so long as the copies identify the Authors and the copyright notice remains affixed. * Associate Professor of Law, Vanderbilt University. † Professor of Law, Northwestern University. ‡ Law Clerk to the Honorable Oliver W. Wanger, U.S. District Court, Eastern District California. We would like to thank Gary Lawson, John McGinnis, and Saikrishna Prakash for comments on earlier drafts of this Article. 1 \\server05\productn\N\NDL\80-1\NDL101.txt unknown Seq: 2 8-DEC-04 13:46 2 notre dame law review [vol. 80:1 INTRODUCTION The 1980s bore witness to a dramatic upsurge in interest in the proper roles of the President and Congress in controlling the execu- tion of the law. Much of the initial scholarship focused on the consti- tutionality of the so-called independent agencies, such as the Securities and Exchange Commission and the Federal Communica- tions Commission, which theoretically operate outside of direct presi- dential control.1 Interest was fanned still further by the Supreme Court decision in INS v. Chadha2 striking down the legislative veto, as well as the decision in Bowsher v. Synar3 invalidating the Gramm-Rud- man-Hollings Act’s attempt to lodge executive authority in an agent of Congress. The proper scope of presidential power also arose in Clin- ton v. City of New York,4 which invalidated Congress’s attempt to give the President the power to make line-item vetoes. The President’s constitutional authority also arose in a series of high-profile Supreme Court cases addressing the legality of detaining “enemy combatants” in the wake of the September 11, 2001, attack on the World Trade Center and the Pentagon. The Court did not reach the merits of the constitutional issues, resolving those cases on either statutory5 or juris- dictional6 grounds. But the importance of this issue has been underscored most spec- tacularly by the controversy surrounding the use of independent 1 See, e.g., David P. Currie, The Distribution of Powers After Bowsher, 1986 SUP. CT. REV. 19, 31–36; Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41; Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 GEO. WASH. L. REV. 596, 608–23 (1989); Peter L. Strauss, The Place of Agencies in Gov- ernment: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573 (1984); Paul R. Verkuil, The Status of Independent Agencies After Bowsher v. Synar, 1986 DUKE L.J. 779; Symposium, The Independence of Independent Agencies, 1988 DUKE L.J. 215; Symposium, The Uneasy Constitutional Status of the Administrative Agencies, 36 AM. U. L. REV. 277 (1987). 2 462 U.S. 919 (1983). 3 478 U.S. 714 (1986). 4 524 U.S. 417 (1998). 5 See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2639 (2004) (plurality opinion) (rul- ing that because the President had statutory authority to detain persons designated enemy combatants, the Court did not need to address the scope of the President’s constitutional authority to do so). But see id. at 2675–80 (Thomas, J., dissenting) (agreeing with the plurality’s support for presidential authority in this area, but bas- ing it instead on constitutional rather than statutory grounds). 6 See Rumsfeld v. Padilla, 124 S. Ct. 2711, 2715 (2004) (ruling that because the district court lacked jurisdiction, the Court did not need to address the President’s authority to detain enemy combatants); Rasul v. Bush, 124 S. Ct. 2686, 2699 (2004) (reserving decision on the scope of the President’s power to detain aliens captured outside of the United States). \\server05\productn\N\NDL\80-1\NDL101.txt unknown Seq: 3 8-DEC-04 13:46 2004] t h e unitary executive 3 counsels permitted to enforce federal law outside of presidential con- trol.7 The Supreme Court upheld the constitutionality of the inde- pendent counsel statute in Morrison v. Olson8 despite a powerful dissent by Justice Scalia warning of the dangers of politically motivated investigations.9 The years that followed appeared to bear out Justice Scalia’s dire predictions, as accusations mounted that the indepen- dent counsel process had been subverted for political purposes,10 climaxing in the barrage of recriminations prompted by the role of the independent counsel in the impeachment of President Clinton. Further controversy was forestalled when the statute authorizing inde- pendent counsels was allowed to lapse in 1999.11 The more recent scholarly commentary has largely centered on whether the Constitution created a “unitary executive,” in which all executive authority is centralized in the President. Participants in the debate have examined the text12 and ratification history13 of the Con- 7 For early commentary on the constitutionality of independent counsels, see generally TERRY EASTLAND, ETHICS, POLITICS AND THE INDEPENDENT COUNSEL: EXECU- TIVE POWER, EXECUTIVE VICE 1789–1989 (1989); Stephen L. Carter, The Independent Counsel Mess, 102 HARV. L. REV. 105 (1988); Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong, 38 AM. U. L. REV. 313 (1989); Shane, supra note 1, at 598–608; Charles Tiefer, The Constitutionality of Independent Officers as R Checks on Abuses of Executive Power, 63 B.U. L. REV. 59 (1983). 8 487 U.S. 654 (1988). 9 Id. at 712–14, 727–31 (Scalia, J., dissenting). 10 See Benjamin Ginsberg & Martin Shefter, Ethics Probes as Political Weapons, 11 J.L. & POL. 497 (1995). For an analysis of the impact of the political abuse of inde- pendent counsels for the separation of powers, see Steven G. Calabresi, Some Norma- tive Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995); Steven G. Calabresi, Some Structural Consequences of the Increased Use of Ethics Probes as Political Weapons, 11 J.L. & POL. 521 (1995). 11 For an analysis of the rise and fall of the independent counsel statute, see Christopher S. Yoo et al., The Unitary Executive During the Fourth Half-Century, 1945–2004, 91 IOWA L. REV. (forthcoming 2005). 12 Compare, e.g., Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 NW. U. L. REV. 1377 (1994) (arguing that the Article II Vesting Clause, bolstered by other constitutional provisions, represents a substantive grant of constitutional power), Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541 (1994) (relying on the Vesting Clause of Article II to argue for the existence of a unitary executive), and Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992) (concluding that the Article II Vesting Clause represents a power grant to the Execu- tive), with Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 47–55, 119 (1994) (disagreeing with Professor Calabresi’s views), and A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 NW. U. L. REV. 1346 (1994) (arguing against Professor Calabresi’s position). 13 Compare, e.g., Calabresi & Prakash, supra note 12, at 603–05 (arguing that the R pre-ratification history supports the unitary executive), and Saikrishna
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