Talk:Unitary executive theory

Definition

Ok, it seems like a lot of the back-and-forth @Just10A and I have been having traces back to how to define 'unitary executive theory.'

It appears to be a spectrum of opinions on how strong the president should be. A recent article I read defined the minimum version as "at a minimum, the President should be able to remove all executive-branch officers, including the heads of independent regulatory agencies, at any time and for any reason." This is hardly a universally-accepted idea. Superb Owl (talk) 20:07, 18 July 2024 (UTC)

It looks like some of the disconnect could be coming from the fact that I have been reading much more recent sources that seem to make less of a distinction between weak and strong. I have started adding some of those and scaling back the use of sources from the 90's to define a term that did not enter popular discourse until the 2000s. Hopefully with more and newer sources we can come to a better definition and address some of the issues accordingly, but for now, there seems to be the idea that the theory is associated with a stronger version than exists today while opponents wants less executive power than exists today. Superb Owl (talk) 23:39, 18 July 2024 (UTC)

@Superb Owl: Sunstein & Vermeule (2021) describes that as the minimum for the strongly unitary view of the presidency – not as the minimum for the weakly unitary view. (There is, however, a working paper from John C. Harrison arguing that Congress must give some tool to ensure presidential control of executive policy-making, though not necessarily removal.) The strong view is what is normally described as "the unitary executive theory" in scholarship.

During the Bush II years it became popular to describe basically every assertion of inherent executive authority as being "the unitary executive theory". In reality, things like Zivotofsky v. Kerry (2015) (recognizing inherent presidential power to recognize foreign nations against the view of Congress) are about the breadth of (inherent) executive power rather than the unitariness of executive power. SilverLocust 💬 00:49, 19 July 2024 (UTC)

Ah ok, that may be part of why this has been confusing is there is not a consistently applied definition and the term is (most often?) used as shorthand for the strong theory.
My instinct is to describe this article from the standpoint of the strong theory if that is how most reliable sources describe the theory, while mentioning that some authors distinguish between stronger and weaker versions. Curious to get definitions from people other than Cass Sunstein (a notable advocate for expanded presidential power when at OIRA) Superb Owl (talk) 02:38, 19 July 2024 (UTC)

Here is the footnote for the quote I added earlier on 'at a minimum...': See CALABRESI & Y OO , supra note 1, at 3-4; see also, e.g., Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 A LA. L. REV . 1205, 1225 (2014) (asserting that “[f]or adequate constitutional control of execution, the President must have the possibility of directing discretionary legal duties, even those assigned to other officers,” and thus must be able to remove all executive officers, including the heads of independent agencies); John Harrison, Addition by Subtraction, 92 VA. L. REV . 1853, 1859-62 (2006) (characterizing executive-branch officers as “agents” of the President whom the President must be able to remove if they do not retain his trust); cf. Morrison, 487 U.S. at 724 n.4 (Scalia, J., dissenting) (contending that the President must have “plenary power to remove [all] principal officers,” but that inferior officers can be made “removable for cause” so long as their appointing officers can dismiss them for “the failure to accept supervision” (emphasis omitted)). Superb Owl (talk) 02:45, 19 July 2024 (UTC)

adding this from a 2024 chapter to help with any future discussions, "There is no one canonical account of the unitary executive theory, though various academics have provided their own characterizations of it." Superb Owl (talk) 15:34, 29 July 2024 (UTC)

Constitution paragraph in the lead

@Just10A, I have been reverting your edits here because they seem to be pushing one interpretation, without sourcing (secondary sourcing would be ideal that summarizes the interpretations of the field and not just one author) that this is the only interpretation of that clause. There are sources throughout the article that show a range of interpretations of aspects of the constitution and Article II in particular, some of which I added to that paragraph for more context. Making definitive statements about how a clause should be interpreted is also very hard to do so in a WP:Verifiable way, hence the softer language around 'proponents interpret' instead of 'this clause solely vests...' which makes certain implications that are not universally accepted by reliable sources. Superb Owl (talk) 15:27, 29 July 2024 (UTC)

It is not pushing one interpretation. It is describing the position of the theory, and is supported by the sources. Further, as explained in the edit, this was included in the lede of the article before it was taken out by you. Just10A (talk) 15:30, 29 July 2024 (UTC)

What sources? Because the source at that sentence specifically says, "Unitarians fixate on the wording of Article II’s 'Vesting' clause (versus the wording in Articles I and III)' Superb Owl (talk) 15:31, 29 July 2024 (UTC)

Unitarians are people who adhere to the theory. The sentence is describing what the theory maintains. Not what is necessarily so. Furthere, several of your later additions trying to added context are incorrect and need to be amended. Just10A (talk) 15:35, 29 July 2024 (UTC)

I am sorry, but you are phrasing the sentence as if that is what the constitution says definitively. My phrasing specifically clarified that this was the interpretation of proponents. These claims and accusations need to be backed up with some sources. For now, I am reverting them and posting on your talk page. Superb Owl (talk) 15:37, 29 July 2024 (UTC)

I'm sorry but I'm afraid that just isn't supported by the text. The sentence very clearly begins with "the theory is based on" That is not controversial, and is very clearly supported by the sources. I can add "an interpretation" but even then thats a little redundant given the beginning of the sentence. Just10A (talk) 15:44, 29 July 2024 (UTC)

I am picking up a book today on the theory and should be able to resolve this in a few hours one way or another. For now, I appreciate you going along with the more cautious wording while verifying the claim Superb Owl (talk) 15:49, 29 July 2024 (UTC)

You are more than welcome to do so. I doubt that a single unknown book is going to resolve basic fundamental aspects of the lede, but of course you can research the subject as much as you like. All changes done are in line with sources discussed so far. Just10A (talk) 16:00, 29 July 2024 (UTC)

For now, I left your wording for these first two sentences and flagged it with inline flags for more citations and one pointing to this discussion Superb Owl (talk) 17:06, 29 July 2024 (UTC)

You added a "disputed - discuss tag" as well as a first "citation needed" tag. I will address both, as both are not needed and I can probably simultaneously address some of your earlier expressed concerns as well.

Disputed - Discuss tag

The sentence currently reads:

"The theory is based on an interpretation of Section 1 of Article Two of the United States Constitution, which solely^{[disputed – discuss]} vests "the executive Power" of the United States in the president, to make the case for power over the executive branch."

The "disputed" tag is not needed because, quite simply, the content of that sentence is not disputed. The fact that specifically Section 1 of Article Two of the US Constitution vests power solely in the president and no one else is not disputed. We're not talking about the the Constitution as a whole, not broader American political theory, but specifically Section 1 of Article Two, particularly Executive Vesting clause. That's what the sentence is saying. I've already cited the Executive vesting clause before, but I'll paste it here. It reads:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:[...]

Again, the sentence in the wiki page isn't talking about the Constitution as a whole, or broader political theory regarding the branches, but specifically Section 1 of Article Two. Read the first sentence. The sentence clearly states that the executive Power shall be vested in a President it mentions the president solely and no one else. With that in mind:

1.) Do you, personally, derive anyone being vested with Executive power other than the president from Article II section 1? If so, who? The answer is clearly not.

2.) Can you produce any sufficiently citable scholarly source that says that Section 1 of Article Two vests executive power in anyone other that the president to the point that there is a consensus dispute? Again, not the broader constitution as a whole, not philosophical theory, but specifically Section 1 of Article Two, because that is what the sentence is referring to. Again, the answer is no. I've at least seen nothing that says that in research. As the lead later discusses, critics focus on how the language of the Executive Vesting clause must be BALANCED with the rest of the constitution/checks and balances, not that the vesting clause simply doesn't say that. The content of specifically the vesting clause/Section 1 of Article Two solely vesting power in the president is not in dispute. Further, it is already supported by the available citations in the article.

In fact, I'd be surprised if you could find a SINGLE reputable source that states that the cited language above vests executive power in anyone other than the president. Much less enough to say there is a disputed consensus. Again, as the article already alludes to, all criticism is derived from other parts of the constitution/ political theory, not Section 1 of Article Two, which is all the disputed sentence is referring to.

"Citation Needed" Tag

As already discussed above, that sentence doesn't particularly need a cite as its evident from already cited material and is pretty much the basis for UE theory as a whole. I could of course just cite the US Constitution Executive Vesting Clause, even though its a primary source, as its only being used to establish a basic fact that is readily apparent by its language, doing so would be in line with MOS:LAW, but I think that would be a little mundane. I could also just cite a basic article not about UE theory, but just a "what does the vesting clause say" article, but again, I think thats probably pedantic and not needed considering the state of the article already. Just10A (talk) 19:08, 29 July 2024 (UTC)

The dispute is not the president, it is the use of 'solely' or 'singularly', which are not terms found in either the primary source or in the secondary source you added. They just are also not necessary and possible WP:Weasel words. That is a core part of the disagreement is that they imply something that is not unambiguous.
The vesting clause is ambiguous in what it means. By framing it as vesting vs. Article I and III, you are crowding-out real questions about what vesting means. I added a citation arguing that it plausibly could be distinguishing between an executive council and a president while not making any claims on the strength of presidential power. This is why that language is important. Some critics do come to the conclusion you stated that they are in tension, but not all, and that is why I want to reflect the viewpoint of some critics who dispute the vesting clause interpretation. Superb Owl (talk) 20:43, 29 July 2024 (UTC)

I'm sorry but you are totally incorrect.

1.) The exact terms do not have to be in the sources. It's not a direct quote. Statements in the source, as well as the primary document itself, support the use of the words, and you have produced nothing to dispute that interpretation of Section 1 of Article Two. Such statements include:

"this Vesting Clause establishes an executive office to be occupied by an individual.

"Few could disagree that the Vesting Clause establishes a unitary executive in the sense that it creates a single executive President.

"by “vesting” powers in a singular executive, does the Vesting Clause establish that the President may exercise those powers by himself, without interference by Congress, and, concomitantly, does it give the President the authority to direct and supervise any federal official involved in such matters?"

(this statement is asking a question, but is recognizing the singuarlity of the vesting clause as a premise to the question)

2.) As already cited above: the source does use that wording. Until you removed the source. The source is written by scholars, and published by an institution devoted to the study of the Constitution of the United States. You are completely incorrect.

I am completely reverting your changes, and your statement(s) are so egregious and contrary to clear wikipedia guidelines that you will be reported if such behavior continues. Just10A (talk) 21:18, 29 July 2024 (UTC)

I mistook the constitution center for another institution when I first removed it. It seems reliable enough. I do not understand splitting it out from the previous sentence as it seems redundant but I guess it does little harm as-is if we leave it for now. I have never disagreed about it being a singular executive, I have disagreed about the amount of emphasis being put on singular or singularly, etc. It's a difference of phrasing, not fact. We also have the conflicting definitions issue which has not been resolved. Some sentences are written about stronger versions and others weaker versions. That disconnect seems to continue to cause friction in edits. Superb Owl (talk) 21:52, 29 July 2024 (UTC)

WP:LEADFOLLOWSBODY

@Just10A, all of the additions I have made are clearly reflected in the body and I invite you to do the same before adding interpretations in the lead. Also, just because a source makes a claim, that claim needs to be clearly spelled-out in the text in the body before added to the lead. Ideally, given this is a controversial topic, with a quotation embedded in the citation for easy reference for those who may not have access and are just joining us. Superb Owl (talk) 18:34, 29 July 2024 (UTC)

I am not aware of any changes I have made to the lead that are not reflected in the body. I rarely change both at the same time because usually the content is already included in the body and only needs to be added to the lead. Just10A (talk) 19:20, 29 July 2024 (UTC)

@Just10A, please review WP:Original research, WP:secondary sources, and Wikipedia:Writing_better_articles#Tone - the superlatives and added emphasis are not necessary, supported by strong, reliable secondary sources (especially important in the lead paragraph) and are not encyclopedic Superb Owl (talk) 02:54, 6 August 2024 (UTC)

1.) The additions do not exclusively rely on primary sources. They are well supported by the cited secondary sources as well.

2.) Primary sources may be used for establishing basic facts and for things like direct quotes. That is what I have used them for. Further, court opinions are not traditional "primary sources," which wikipedia mainly focuses on things like scientific experiments when describing primary sources.

In summary, all additions added are well cited by both primary(only court opinions,) and secondary sources, in ways similar to other Wikipedia legal pages. The fact that several of your original reversion edits were based on blatant falsehoods (such as saying "this quote should be discussed in the body before being 'shoehorned' into the lead," while that exact quote was verbatim in the body) speaks for itself.

These are good faith edits which are clearly well sourced and in line with wikipedia policy. Again, you are more than welcome to proceed to arbitration, because I'm positive all or most of the edits will easily pass. Just10A (talk) 03:16, 6 August 2024 (UTC)

1) Not all of your edits are supported by secondary sources (though some are). I tried pointing some out with inline citations to be helpful but did not seem to do much so I removed them
2) I may have overstepped with that comment about it not being discussed in the article as I did not remembering that it was discussed in the body, however I will say that the summary did not reflect a consensus and needed some work and so it felt like shoehorning. I have been working to expand the discussion around the two recent supreme court cases in the body so that we can make sure the lead accurately reflects that and come to more of a consensus (I agree that it is worth including to some degree). Superb Owl (talk) 04:43, 6 August 2024 (UTC)

Further, I invite you to review Template:Cite court and MOS:LAW. There is great precedent for citing legal cases in this way because they are a unique type of source. So much so, that there's literally an entire category of wikipedia citation for it.

"Where both primary and secondary sources are available, one should cite both. While primary sources are more "accurate", secondary sources provide more context and are easier on the layperson. Where primary and secondary sources conflict factually, the primary source should be given priority." Just10A (talk) 03:54, 6 August 2024 (UTC)

Thank you for citing MOS:LAW - that is helpful to read and I see that there is more of a place for these citations than I thought. However, what makes me uncomfortable with the usage so far is that you seem to be making interpretations from citations that a reasonable person could interpret differently. That is WP:OR and that is the issue I have had with many of the primary sources you have used thus far. This is a complex issue and it should not be hard to find reliable secondary sources (I will keep working to find more to add) that helps to interpret what the ruling does or does not do with regard to precedent and Unitary executive theory. Superb Owl (talk) 04:48, 6 August 2024 (UTC)

Discussion section is (partially) dubious and article-wide focus schange

The entire first paragraph of the discussion section of this article is extremely outdated (30 year old citations), dubiously sourced and likely contains statements of opinion or original research.

According to law professors Lawrence Lessig and Cass Sunstein in 1994,^{[needs update]} "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version."^:8-9 In either a stronger or a weaker form, the theory would limit Congress's power to divest the president of control of the executive branch. The hypothetical "strongly unitary" theory posits stricter limits on Congress than the "weakly unitary" theory.^{[page needed]} But parts of the Constitution grant Congress extensive powers. Article I of the Constitution gives it the exclusive power to make laws, which the president then must execute, provided that those laws are constitutional. Article I, Section 8, clause 18, known as the Necessary and Proper Clause, grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof". The Constitution also grants Congress power "To make Rules for the Government and Regulation of the land and naval Forces." Any legitimate theory^{[original research?]} of the unitary executive must allow Congress to wield its constitutional powers while ensuring that the president can do the same.^{[citation needed]}

Some of the information in here is well put and based on primary sources. However this being the first paragraph of the discussion page gives undue weight to the "weak" unitary executive theory. I would largely remove or condense the information in paragraph. I think that this paragraph is really just representative of much of the small issues with this article and its organization.

Cass Sunstein is a credible legal scholar who has written much more recently on the idea of the unitary executive. In 'The Unitary Executive: Past, Present, Future' (2021) Sunstein said that unitary executive theory is when "the President, and no one else has executive power." at 81. He remarked that this is the theory by which the executive is called "unitary." When referring to the so-called "strong" view, he simply called it as the "idea of the unitary executive." Id at 84. That is, the strong view is the unitary executive theory.

As another example Chris Yoo in 'The Unitary Executive in the Modern Era, 1945-2004' who also (is an extremely credible source on the subject and is cited in the article) uses unitary executive theory to mean entirely the "strong" interpretation saying:

Scholarly debate has focused on whether the Constitution created a "unitary executive" in which all executive authority is centralized in the president, rather than the "executive by committee" that existed under the Articles of Confederation.

at 604.

It follows that if some of the most prominent legal scholars refers to the term "unitary executive theory" to be, not predominantly, but entirely, the "strong" interpretation, then this article should focus much more on this "strong" theory.

As another reason why this article should give much less focus to the "weak" theory is that the 'Criticism' section deals entirely with the so-called "strong" version.

I do not dispute that there are theories (in Constitutional jurisprudence) of a weak executive in the United States, but we should clarify in this article that if somebody says 'unitary executive theory' they mean the kind where presidents are able to remove executive branch officials and employees at will, and one which reads Scalia as correct in Morrison v. Olsen.

I do not think that there is anything wrong with the so-called "weak" interpretation, but discussion of the "weak" theory would be more appropriately couched in an article about debates on the extent of the President's powers under Article II, rather than this article.

I also see value in the 'Executive Power in Other Democracies' section, but I would move discussion of non-US jurisdictions to another article (I really like the part on governors though). This section provides helpful context for understanding executive power generally, but it needlessly adds length and does not necessarily further the understanding of unitary executive theory in the American political context (which is what this article is about).

Finally, this article has a ton of good information but it's organized like shit. I would change the entire organization to something like:

- 1. Terminology

- 2. Background
 - 2A. Historical Background (Pre-20th Century)
  - 2A1. King of Great Britain^*
  - 2A2. Background Put the Constitutional ratification debates here (2.5, 3.1)
 - 2B. 20th Century Jurisprudence
  - 2B1. Judicial decisions + growth of presidential powers section should be here (current sections 3.2, 3.3)
 - 2C. Textual Basis
  - 2C1+ (Take Care Clause, Opinion Clause) 

- 3. Criticism
 - I would put anything relevant/practical involving the "weak" theory here. I would also put any of the normative/moral criticisms here. I would also put discussions of state governors here and would change the title of this section to 'Other Theories of Executive Power' with perhaps a link to the article on Executive (government).

- 4. In Media
- 5. See also
- 6. References
- 7. Further Reading

^*This section has promising information but focuses too little on what the Founders thought of the King of GB and his power. "While the actual powers held by the Crown are disputed by legal historians. . ." This is good and well, but it does not help contextualize what the framers of the Constitution believed of the powers of the King of GB, which would be much more relevant for historical background and the historical antecedents for this theory. What would be helpful here is a cite to the Federalist, where the King's power is cited as inspiration for both the President's power, as well as the checks on the President's power. That is, "Invoking the king as an argument for expanded executive power was first made by the Supreme Court in Myers v. United States (1926)" is partially false. The earliest in the American context is at least the Federalist 70 (1788) and the earliest case where the King was cited as a justification for the U.S.'s national sovereign power was at least Johnson v. McIntosh (1823). Myers is perhaps the first time the king had been invoked as an argument for expanded executive power in a court case, which is a much more narrow statement. Overall, this section on the King of GB should be significantly rewritten.

Please let me know what you guys think. I am willing to make many of these changes and to collaborate with others who watch the page, but I wanted to gather consensus before making any significant changes. I look forward to hearing from the people who manage this page. I am a Leaf (talk) 00:30, 1 October 2024 (UTC)

"Constitutional custom of distributed authority"

Thanks for your thoughtful edit to the Terminology section. I also proposed, "Opponents of unitary executive theory describe a 'Constitutional custom of distributed authority' which has allowed for dialogue between the staff of various agencies and the President." It seems to me that the phrase "Constitutional custom of distributed authority" concisely describes a viewpoint. I interpret this phrase as meaning that this is a restraint on Presidential power is a custom. I think this idea deserves some prominence in the article because customs can be changed without a law being passed or a Supreme Court decision. Thank you. T g7 (talk) 19:15, 9 November 2024 (UTC)

Change of Focus Redux and CONSENSUS CHECK

The term 'Unitary Executive Theory' is like a pop-legal term for the more well documented and scholarly phrase 'Vesting Clause Thesis'. I do not propose changing the title, as the "unitary executive theory" is a much more popular phrase and will be easier to find and will hopefully inform more people about this legal theory.

I suggest changing this article to include citations referring to vesting clause thesis. See, for example - The Executive Power Clause Mortenson (2020) (referring to the "vesting clause thesis" as the "executive power clause" and referring to originalists as believers in a "unitary executive" ) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3406350 and Vesting Shugerman (2022) (referring to the vesting clause as a pillar of the unitary executive theory) https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2288&context=faculty_scholarship

Because the scholarly use of "unitary executive theory" is much more recent, articles referring to it are less numerous. There are decades of scholarly discussion on the limits of executive power via the vesting clause under that term "vesting clause thesis" which we would likely do ourselves well to include.

I also propose the table of contents and structure change posted in my original thread on this talk page in the vein of

- 1. Terminology
- 2. Background
 - 2A. Historical Background (Pre-20th Century)
  - 2A1. King of Great Britain^*
  - 2A2. Background Put the Constitutional ratification debates here (2.5, 3.1)
 - 2B. 20th Century Jurisprudence
  - 2B1. Judicial decisions + growth of presidential powers section should be here (current sections 3.2, 3.3)
 - 2C. Textual Basis
  - 2C1+ (Take Care Clause, Opinion Clause) 
- 3. Criticism
- 4. In Media
- 5. See also
- 6. References
- 7. Further Reading

I did not edit the article as stated in my previous I wanted consensus before significantly altering the structure of this article. I do not intend to eliminate any information, for now at least, just to present the present information in a more encyclopedic and less redundant way. I am a Leaf (talk) 00:00, 25 November 2024 (UTC)