In the 1980s, a number of young and conservative legal scholars, working in the Reagan Justice Department, looked for a way to allow the president greater control over executive branch decisions while also protecting core presidential powers that had suffered in the 1970s as a result of a resurgent Congress in the post-Watergate period—a situation former president Gerald Ford referred to as the imperiled presidency. It was in this environment that the unitary executive theory was born, as a way to defend the bold assertions of power by the Reagan administration as consistent with the Constitution.

Post-Reagan, these conservative scholars would mainstream this theory. It would show up in legal opinions in the Clinton administration, cited directly or indirectly by Supreme Court justices, advanced by the presidencies of the twenty-first century, and used by academics (including me) who study the presidency as a way to explain presidential behavior in an increasingly polarized political environment. And in the wake of President Trump, a renewed attention (if not concern) has been devoted to untangling what elements of the unitary executive, if any, played a role in the actions of his administration. It is in this context that I review two recent books on the unitary executive: Graham Dodd's The Unitary Presidency and Jeffrey Crouch, Mark J. Rozell, and Mitchel A. Sollenberger's The Unitary Executive Theory: A Danger to Constitutional Government. These books examine what the theory is, where it originated, and how it has evolved. Both also critique the theory as inconsistent with Madisonian democracy and constitutionalism.

Dodds's The Unitary Presidency offers a concise evaluation of the unitary executive that will be useful to anyone who teaches a course on presidential power. The book has eight chapters—an introduction, conclusion, and six substantive chapters that cover various facets of the theory. It is divided into two major parts: the first is an overview of what the unitary executive is and how it changed at the start of the twenty-first century. The second is a normative and empirical critique of the theory.

Dodds argues that there are a number of definitions of the unitary executive, and in some cases the various proponents form warring camps where the only thing they have in common is their “hatred” for each other (4). Hyperbole aside, there are some basic elements that all unitarians (as supporters of the theory are often referred to) can agree are essential to the theory. First, the president has all of the executive power, including the power to hire, direct, and fire subordinate officers (1). This is supported by Federalist 70, where Hamilton argues that a single president produces energy for administrative efficiency and political accountability (in contrast to a plural executive).

Second, presidential power is grounded in the Constitution (versus the persuasive and reputational attributes of a particular president). Important to unitarians are Article II, Section 1's vesting clause, which gives all executive power to a president (as opposed to qualifying the power, as is the case with Article I, or diluting the power between two or more entities, as is the case with Article III); Article II, Section 1's oath clause, which obligates the president to protect and defend the Constitution, including the liberties of all Americans; and Article II, section 2's take care clause, which obligates the president to insure the laws are “faithfully executed” (8–9).

Much of the early work on the unitary executive theory located its origins in the Reagan administration, which is technically true. It was mostly young, conservative attorneys (including Supreme Court justices John Roberts and Samuel Alito) working in the Reagan administration's Department of Justice who exploited the ambiguities of Article II to defend bold assertions of power. But as Dodds argues, the theory did not emerge in a vacuum, but rather built on historical precedents, some of which dated to the Washington administration. The actions of these early presidents, even though in some cases they were rebuked or limited, laid part of a foundation that the Reagan administration would build upon. Key to this history are the presidents of the 1970s: Nixon, who worked to reorganize the bureaucracy to make it more sensitive to the policy goals of the White House, and Ford and Carter, who had to deal with a nearly impossible political environment post-Watergate.

The Reagan administration would institutionalize the unitary executive theory in a way that would benefit a president of any party. This meant using a variety of political instruments that advanced presidential power. For instance, the Reagan administration made use of executive orders, memoranda and proclamations, and bill-signing statements that would help his successors—Democrat or Republican—achieve policy objectives and protect core constitutional powers.

The beginning of the twenty-first century also brought a change in the unitary executive theory. Dodds argues that the George W. Bush administration shifted the focus on the unitary executive from domestic policy to foreign policy, and advanced more extreme assertions of “inherent” presidential power that claimed there were certain areas where the president's power was beyond question—for instance, the Bush administration's claim of inherent authority to create military commissions to try enemy combatants or the freedom to disregard the Geneva Convention's ban on torture. And despite candidate Obama running against the unitary executive in 2008, President Obama embraced many aspects of it—executive orders, recess appointments, and policy czars—when he ran into partisan gridlock.

And then there is President Trump, who Dodds claims embraced the unitary executive because it aligned with “his admiration of autocratic leaders, his penchant for bold personal decision-making, and his desire for loyalty” (54). It is clear that Trump embraced, and even expanded, elements of the unitary executive—audacious claims of executive privilege, absolute removal claims of subordinates, and an effusive use of signing statements to challenge hundreds of provisions of the law.

The second part of Dodds's book is a critique of the unitary executive theory. First Dodds refutes the claims of some proponents that the theory is consistent with the design of the Founders. The Founders created overlapping checks on presidential power, from the appointment of executive-branch and judicial-branch officers to the treaty and war powers. Second, even modern history is replete with limitations on presidential power. For instance, Supreme Court decisions have limited the use of executive privilege, and Congress continues to use the legislative veto to extend congressional oversight into bureaucratic decision-making.

The second book here under review, Jeffrey Crouch, Mark J. Rozell, and Mitchel A. Sollenberger's The Unitary Executive Theory: A Danger to Constitutional Government, has seven chapters: an introduction and conclusion and five substantive chapters on the origins, development, evolution, and implementation of the unitary executive theory. It differs from the Dodds book in the sense that it is a critical evaluation of the theory as anti-Madisonian and antirepublican. This book will be important to anyone researching presidential power or teaching a graduate-level course on the American presidency or the relationship between the branches.

Like Dodds, the authors discuss the multiple definitions of the unitary executive, as well as the common elements: a powerful president who controls executive branch agents and decision making and has inherent powers that cannot be limited or checked by the Congress (152). Further, like Dodds, they also underscore the constitutional components of the theory flowing from the vesting, oath, and take care clauses of Article II.

They divide the proponents of the theory into two groups: those who advocate a “weak” version of the theory and those who advocate a “strong” version of the theory. Proponents of the weak version, advanced by legal scholars Steve Calabresi and Christopher Yoo, believe that the unitary executive gives the president control over the executive branch. Those who advocate a strong version, articulated by John Yoo and former vice president Dick Cheney, not only support the president's control of the executive branch but also the uncheckable inherent powers that exist beyond the traditional powers in the Constitution (22–23).

The authors devote most of the book to critiquing how the unitary executive is often checked by the other branches of government, denying the president absolute control over the executive branch and denying the concept of “inherent” powers. Chapters 2–4 focus on the various ways the president's domestic powers—including those regarded as “unilateral”—are limited, while chapters 5–6 discuss the various ways the president's foreign policy powers are limited.

Like Dodds, the authors find the historical claims of a unitary executive unconvincing. As they illustrate, the behavior of earlier presidents, as well as the scholarship on presidential power, offers no support for the all-powerful president envisioned by unitarians. Even President Lincoln, often cited as precedent by unitarians, sought the retroactive approval of the Congress once the crisis of the Civil War had waned. He did so precisely to avoid his actions being used by later presidents as a green light to act outside of the Constitution. They correctly note that it was the Reagan administration that articulated the principles of a unitary president, and that looked backwards for historical examples to justify their actions.

The authors also offer a critique of Steve Calabresi and Christopher Yoo, two legal scholars who have argued that the unitary executive can be traced to the Constitutional Convention, and can be found in every president since Washington. Calabresi, a law professor at Northwestern University (and founder of the conservative Federalist Society), worked as one of the conservative attorneys under Attorney General Ed Meese. Calabresi is credited with having originated the unitary executive theory and subsequently advancing it in law review articles as well as symposia held by the Federalist Society. Cohen, Rozell, and Sollenberger argue that “the unitary executive theory is a recent invention, and we see its advocates as less concerned about mere hierarchical control of the executive branch . . . and instead focused more on the extent of presidential power” (18).

The authors divide their criticisms of the theory into two major parts: critiques of unitarian claims about the domestic powers of the presidency and of claims about the foreign powers of the presidency, the latter of which often are characterized as far more expansive where the president is the “sole organ” in the realm of foreign policy and international affairs. In both cases, the authors point to multiple instances in which the president either was checked by the Congress or the courts or was required to cooperate with the Congress before moving forward.

First, the domestic powers. A great deal of attention has been paid to the unilateral policy instruments used by a president to enable him to make policy without the Congress. As the authors demonstrate, there are numerous instances where the instrument fails or creates pushback from the Congress or courts. For example, in his first year, Obama issued an executive order closing the Guantanamo Bay detention facility. Not only did he leave office with the facility still open, but he also triggered a bipartisan reaction from the Congress, requiring the president to secure their support if he wants to transfer detainees or close the facility. In addition, when it comes to absolute control over the executive branch, the authors illustrate several examples where a president has been challenged or his control is limited, including the Supreme Court's acceptance of an independent counsel, located in the executive branch but answering to the courts, and the courts’ permitting Congress to put stipulations on when, and under what circumstances, a president can remove a subordinate official. Further, there is the distinction between discretionary and ministerial roles, according to which some subordinates do not have the ability to interpret the law.

As for the foreign sphere, which has always been one in which a president exerts greater control than in domestic matters, the authors cite several examples where the absolute control asserted by the unitary executive theory is limited. For example, Congress continues to invoke the provisions of the War Powers Act despite a consistent refusal by presidents from Nixon to Trump to accept that the law is constitutional. Furthermore, the Congress forced the Bush administration in 2005 to commit to the ban on torture, which included the administration's policy of “enhanced interrogation.”

These two books offer students of the presidency opportunities for future research. First, both do a fine job dispelling the notion that the unitary executive explains presidential behavior before the Reagan administration. Those who have advocated this point, like Calabresi and Yoo, are trying to put a square peg in a round hole. It does not fit. But what happens when you focus just on the twenty-first-century presidents? And what if you add into the equation the crippling polarization that has seized our political system, when members of Congress cheerlead the flexing of presidential power? Not to mention an attack on the institution itself! We saw Democratic members of Congress urging President Obama to disregard Congress on immigration reform, and we saw Republican members of Congress actively attacking the oversight process looking to investigate President Trump, accused by a whistleblower of dangling military aid to Ukraine in exchange for political dirt on Joe Biden. Congress currently lacks members who care about congressional prerogatives. Thus expansive claims of presidential power are less likely to draw a congressional challenge as they might have forty years ago.

Second, we need to disentangle the theory from the Trump presidency. It was reflexive in some to identify Trump's behavior as unitarian. While he often used some of the language of unitarians and even hired proponents like Bill Barr, Trump was not unitarian. His use of the theory was not to advance institutional power, but instead was done for selfish reasons, to obscure his reckless behavior. Further, he violated a key principle shared among all unitarians—to leave the presidency in better shape than you inherited it and to avoid drawing negative attention to your actions. Negative attention—preemptive executive privilege or his executive order banning Muslims from entering the United States—invites media scrutiny, congressional investigations, and court decisions that may make it harder for future presidents to act.