“The executive power shall be vested in a President of the United States of America.” Article II's opening sentence has been at the roots of political controversies since the founding. How much of the executive power belongs to the president? What is the scope of that power? To what extent can Congress insulate officials in the executive branch from presidential control? In The Unitary Presidency, Graham Dodds offers an essential primer to understanding these issues.
Dodds's book takes up one of the most consequential and controversial ideas in politics today: the unitary executive theory. This theory's proponents claim that the entire executive power belongs to the president alone and, therefore, that the president should be able to direct—and, if need be, remove—officials in the executive branch (see, for example, Calabresi and Yoo, Reference Calabresi and Yoo2008). This vision, Dodds observes, “is in tension with . . . the ideas of presidential constraints, bureaucratic neutrality, and policy-making that is inclusive, deliberative, or bottom-up” (2).
After an introduction that provides an excellent overview of why the unitary theory matters, the book turns to a historical synopsis. Chapter 1 addresses the founding era through the Carter administration. It describes developments that could be considered consistent with the theory (such as Jackson's removal of the treasury secretary during the Bank War and Myers v. United States [1926]), while also pointing to major developments that are inconsistent with the theory's claims (such as the creation of the Interstate Commerce Commission, enactment of the Pendleton Civil Service Act, and Humphrey's Executor v. United States [1935]). Chapter 2 describes how the theory was explicitly adopted by the Republican administrations of Ronald Reagan and George H. W. Bush. Dodds explains how the Reagan administration aggressively put the theory into practice through actions such as regulatory review and challenging the legislative veto in INS v. Chadha (1983). Dodds also points to the significance of Democratic President Bill Clinton embracing the related strategy of “presidential administration.” Chapter 3 examines the bolder unitary claims and actions of the George W. Bush administration (especially in foreign policy) and Donald Trump administration (such as firing the FBI director), as well as some notable actions taken by Barack Obama. These chapters could sometimes be clearer about which developments Dodds views as more or less important. For example, regulatory review seems more consequential than some of the signing statements discussed.
The book also offers a normative and empirical assessment of the unitary theory. Chapter 4 evaluates the theory's claims about the framers’ intent, democratic accountability, and efficiency. On these grounds, it finds the theory problematic. Chapter 5 considers whether the unitary theory reflects the reality of executive branch management, pointing to significant practical and legal limitations on presidential control over administration.
The conclusion suggests how the unitary theory can be resisted. It argues that Congress can delegate more precisely in order to narrow presidential discretion, that it could structure the executive branch more creatively, that the courts could resist unitary claims, that the bureaucracy could resist presidential impositions, that the public could demand more presidential restraint, and that presidents could choose to exercise more self-restraint.
The limitations of these remedies, though, underscore the developmental significance of the unitary theory. Regardless of the theory's desirability or accuracy, its growing prevalence in our politics provokes contests over who controls the executive power and undermines existing institutional arrangements, particularly the administrative state. Furthermore, the idea that Congress should delegate more narrowly is symptomatic of the same constitutional formalism associated with the unitary theory. That remedy is likely to weaken the legislative branch's ability to determine how to structure the executive branch. As for the courts resisting the theory, the Supreme Court's recent decisions (such as Lucia v. SEC [2018] and Seila Law v. CFPB [2020]) suggest its jurisprudence is trending in a unitary direction. Bureaucratic resistance was a staple of the Trump years, but its effectiveness is questionable. Moreover, to the extent that resistance provides presidents fodder to allege that there is a “Deep State,” it can fuel a president's political case for the unitary executive (Skowronek et al., Reference Skowronek, Dearborn and King2021). Finally, presidential self-restraint leaves us to ask how much of the essential norms of executive branch management should be left to a president's discretion.
Overall, this is a vital book. Scholars will benefit from its wealth of illustrative historical and contemporary examples and cases. And its lessons are timely. As the Trump presidency and recent Supreme Court cases show, this theory's proponents seek a fundamental transformation of our governing system. Understanding and addressing that effort requires fully reckoning with how this theory has been used politically.
