Thursday, February 13, 2020

The Death of the Unitary Executive

Stephen Griffin

As a practical matter, the theory of the unitary executive died today and we will all be better off for it.  In this interview with ABC News, Attorney General Barr obviously sought to quiet the turmoil inside his department by staking out an area for decision making independent of the President.  The problem is as it has been elaborated by many leading scholars, the unitary executive theory does not allow for this.  It is helpful to be familiar with the evolution of the theory to grasp the full implications of Barr's statement.  In fact until now, Barr was one of its leading proponents!  It would have been interesting if the interviewer had asked Barr how his claim to independence from the White House was consistent with the theory.  That's because the unitary executive stresses the sole responsibility of the president (not the Attorney General or any other principal or inferior officer) to control the executive branch.  Indeed from this point of view, the President is the executive branch, the entire executive branch, implying no one can be independent in the way just claimed by Barr.

In truth, the proponents of this theory never had a good account of how it could be reconciled with our system of criminal investigation and prosecution.  But there's more.  With the death of the unitary executive, the theory of public meaning originalism which supported it has also taken a heavy hit.  Roughly, public meaning originalism allowed proponents of this theory to develop its account of "executive power" without worrying about the historical context in which the Constitution was adopted.  This meant they couldn't show that any single framer (yes, including Alexander Hamilton!) actually self-consciously accepted all the tenets of the theory as it has been elaborated since its advent in the Reagan administration.

For those interested, there is an excellent upcoming conference at the University of Texas where I'm sure these issues will be explored in detail.  Stay tuned.

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