In the American legal and political discourse, the unitary executive theory is applied as a doctrine that is used to interpret the provisions of the constitution that establishes independent authorities, agencies or any other legal entity that has executive exercise, and sometimes quasi-judicial or quasi legislative, and the powers that are governed by the official. The president in the United States may be given the authority to nominate, and often he does this through the consent and advise of the congress.
The president however is not given the authority to discipline or to remove. According to Koenig (166), this stems down from the aspect of interpretation of powers under the provisions of Articles 11 of the United States Constitution. The article provides that, it is only the president who is vested with the power execute the executive branch laws.
The vesting clause of Article 11 provides that, “the executive power shall be vested in a president of the United States of America.,”( (Rankin 277). Scholars who support the unitary executive theory keenly apply the language, and also apply the take care clause which provides that, “the president shall take care that the laws are faithfully executed…” (Murphy 541).
The two clauses have been used to argue that, the constitution has created a unified, hierarchical executive department, that is under the direct control of the president.
The theory tries to limit the power of the congress, in divesting the control of the president in regard to the executive branch. Proponents of the unitary executive theory try to show that, the president has all the executive power and is in a position to control agencies and subordinate officers of the executive branch. The implication is that, congress has limited powers to remove executive officers or agencies from presidential control. The theory also implies that, counsels and independent agencies and are unconstitutional with regard to the exercise of discretionary executive power, not under the control of the president.
According to a report by the Senate Special Committee (140), the implications of the judicial branch are that none of the executive branch part can sue the other branch, due to the fact that, “the executive cannot sue himself,” (Rankin 277). The separation of power doctrine would be violated if the Federal courts decided to adjudicate the disputes arising between the branches of the executive.
The unitary executive view is linked with the idea of the conservative legal scholars and the Federalists society, and establishes an aspect of prominence in the independent counsel law, that is illustrated in the case of Olson vs Morrison. The United Courts have made several decisions on the unitary executive theory, but have not explicitly ruled on it. The two opinions published were illustrated in the writing for the opinion of the majority, in Myers vs United States. Chief justice Taft derived an unlimited removal of presidential power over the department of the executive and the subordinates. The narrowing of the case was done by other Supreme Court cases like, the United States vs Nixon, Humphrey’s Executor, in his solitary ruling in the case of Morrison vs Olson, the judge argued for removal of unlimited presidential power of persons exercising the powers of the executive branch, and he stated that, the independent counsel are included.
The United States president has certain powers that are available, which he may exercise in a situation when a national crisis has threatened, or in exigency emergency situations, these are disasters not associated with the natural occurrence such as war or situations near war (Rich 235). These powers are either implied by the constitution, or expressly provided for, the chief executive presumes them to be constitutional and permissible, the powers may also be specified by or inferred from the statute. The research service report from the congress explains that, most of these powers have been used to nullify protections and provisions of the U.S constitution.
According to Janeway (317), the major statue providing the presidential powers during emergency is the International Emergency Economic and Powers Act, which is a Federal law in the U.S, allowing the president in the U.S, to use any sort of threat form outside the U.S, and to prohibit transactions and confiscate property in response. This statute is under Title 50 of the U.S code. The Act modified or eliminated some statutory authority with regard to emergency and stated that, the president should declare formally the national emergency that is existent, and show which statutory authority would be used in responding to the situation. The congress has the power to countermand the declaration made by the president and the authority that may be in use.
Apart from the habeous corpous clause exceptions, the constitution has not created room for dispensing with its provisions in the incidence of national emergency. Disputes over the legality or constitutionality of the emergency powers are reviewed. In fact, both the congress and the judiciary can restrain the power of the executive regarding emergency. The opinion of the public may also be used to restrain the executive powers.
The fourth Amendment done on the United States constitution guards against unreasonable seizures and searches, and was structured to respond to the issue of writ of assistance that is a general type of search warranty. The amendment stated that, searches that are judicially sanctioned and the arrest warrants, should only be granted after reasonable cause is established, and limited to the information provided by the police officer, who should be sworn and get accountable to the issuing court (Smith 175). The Amendment has been criticized as limiting the execution of the power of the president in the event of emergency. Specifically, president Bush has been opposed to this provision and states that, the amendment limits the power of the executive provided under article 11 in the emergency situations.
According to Rossiter (322), the Tenth Amendment expresses the idea that, the government in the Federal State has its powers limited only to the provision of the constitution. The decision of the Supreme Court in the case of United States vs Sprague held that, the Amendment did not add anything to the constitution. Studies have shown that, the tenth amendment failed to amend the proper and necessary clause. Article 11 therefore becomes more significant here, as it establishes the inherent powers of the president in regard to the emergency situations. The powers are deemed to be sufficient not withstanding the provisions of the Tenth and Fourth Amendments. However, because Article 11 has not delineated the scope of the powers of the president during the time of war, the congress applies its authority which is expressly provided, to restrain the exercise of the presidents power.
The Fifth Amendment done on the United States constitution require that, the due process shall be followed by all courts to embody the system of moral principles and rights of people. Miller (736-751) posited that, the amendment stated that no man shall be seized, exiled or imprisoned, or destroyed in any way except by following a lawful judgment. That is the due process. In the exercise of the emergency powers, the Tenth Amendment would limit the power of the president such that, it may be hard for the president to sufficiently deal with the emergency situation. President Bush for instance has stated that, in the control of the Iraq war, the requirement of the due process may not be accurate to deal with the situation, and hence the application of Article 11 becomes necessary.
The case of Youngstown Sheet and Tube v Swayer, 343 U.S 579, is also known as the The Steel Seizure Case, ( Corwin 162). The United States Supreme Court made a decision where the power of the president was limited with regard to seizing the private property without a specific enumerated authority provided under article 11 of the U.S constitution, or the statutory authority conferred to the president by the congress.
Justice Hugo relied on the majority decision which was qualified by five other courts with concurring opinions. This made the determination of the limits and details of the powers of the president to seize the private property, in situations of emergency. Despite the concurrence, Black J wrote for the majority. The decision of this case is applied by most members of the congress to assess the power of the executive, and the legal scholars (Miller, A 738).
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