Abstract
Central to the recent argument from the “unitary executive” is the claim that the unitary executive is consistent with the text and history of the Constitution. But because this veracity and importance of this claim is contested, unitarians also argue that the unitary executive is consistent with democratic theory. This article examines that argument by addressing a question in the political thought of Alexander Hamilton. Although Hamilton was an important defender of an energetic executive, and is associated with an expansive interpretation of executive power, he wrote inThe Federalistthat the president and Senate would share the removal power. In contrast with existing scholarship, which either overlooks Hamilton's statement on removals or dismisses it as a careless error, this article argues that Hamilton's statement limiting presidential removals illuminates his larger argument about executive energy. By showing how “duration” would check “unity,” this article clarifies Hamilton's political thought and offers an important critique of the modern argument from the unitary executive.
Highlights
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks
The argument from the unitary executive recommends a powerful president on the grounds that the unitary executive is compatible with constitutional design and democratic theory
City of New York 1998), Clarence Thomas. It would be beyond the scope of this article to chart the subtleties in the development of the strands of the argument from the unitary executive, but it is easy to notice that the argument has two forms—domestic and foreign
Summary
Central to the recent argument from the “unitary executive” is the claim that the unitary executive is consistent with the text and history of the Constitution Because this veracity and importance of this claim is contested, unitarians argue that the unitary executive is consistent with democratic theory. City of New York 1998), Clarence Thomas It would be beyond the scope of this article to chart the subtleties in the development of the strands of the argument from the unitary executive, but it is easy to notice that the argument has two forms—domestic and foreign.. Rumsfeld (2004), Justice Clarence Thomas employed the argument from a unitary executive to explain the structural advantages of presidential supremacy in foreign relations. In the spirit of footnote two, it is important to note that Scalia did not join Thomas but instead criticized Thomas’ argument in a dissent joined by Justice John Paul Stevens. Rumsfeld (2006), in which Thomas writes of “unity” in the executive instead of the “unitary executive” and cites his own dissent in Hamdi
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