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Constitutional Confusion
Joe Biden doesn't understand the unitary executive theory.
By Erin Sheley
Weekly Standard
10/10/2008 12:00:00 AM

In last week's vice presidential debate, Joe Biden criticized Dick Cheney's notion that the office of the vice president does not exist wholly within the executive branch of the government, blaming Cheney for "aggrandiz[ing] the power of a unitary executive." This is not the first time Biden has thrown around the concept of the "unitary executive" as a fancy-sounding stand-in for a whole parade of terribles: including, apparently, claims that the Bush administration has usurped power from Congress, inappropriately wielded executive discretion, and generally expanded executive authority so as to bring all of Middle-earth under the heel of Mordor.

At a press event last fall, for example, in response to the question of whether a future president would want to "give up the unitary power that Bush has accumulated," Biden launched into a rant about the commutation of Scooter Libby's sentence. Especially given Biden's propensity to describe himself as a constitutional law professor (he has taught as an adjunct at Widener Law School), it is important to point out that he is completely confused as to what the common constitutional interpretive theory of the unitary executive actually means.

Unitary executive theory holds, simply, that it is unconstitutional for Congress to create independent agencies that exercise executive power governed by officers the president cannot remove. This notion has precisely nothing to do with the extent of presidential power (to do things like detain enemy combatants, for example) but, rather, the distribution of this power. According to unitary executive theory, the constitutional principle of separation of powers mandates that executive authority, whatever its scope, belongs solely to the president, in the executive branch.

The famous 1988 case Morrison v. Olson demonstrates this problem, in the context of a Judiciary Committee investigation of the Reagan administration's enforcement of the Superfund Act. The Committee requested that the attorney general appoint an independent counsel to explore allegations that Reagan officials had given false testimony during the Committee investigation. The administration challenged the constitutionality of the Independent Counsel Act on the grounds that an independent counsel who could not be removed by the president created a kind of "fourth branch" of government, wielding executive prosecutory authority and yet answerable to no one. The Supreme Court ultimately upheld the Act, over a dissent by Justice Scalia, on the grounds that an independent counsel, even if not answerable to the president, is nonetheless an executive official, uncontrolled by either of the other two branches of government. Under the theory of the unitary executive, such a fragmented executive branch would be unconstitutional.

Biden's misuse of the term in the debate was particularly humorous because he meant to criticize Cheney for inappropriately claiming legislative powers under Article I which--if one believes that the vice president, as an executive officer under Article II, should be solely answerable to the president--would in some senses violate the theory of the unitary executive. (As it is, however, Cheney's assertion rests upon the power vested in the Vice President by Article I, not Article II, to serve as President of the Senate). Likewise, Bush's use of the presidential pardon power with respect to Scooter Libby had nothing to do with a belief in the unitary executive, but was, rather, a straightforward exercise of discretion specifically vested in the president himself. Whether this discretion was improperly exercised is a political, not a constitutional, question.

University of Chicago law professor Cass Sunstein (by no means a supporter of the current administration, or of conservative constitutional theory) gives a more detailed explanation of the unitary executive here. On the very important point that unitary executive theory says nothing at all about the scope of presidential powers, but rather their distribution, see George Mason University law professor Ilya Somin here. Senator Biden would benefit from reading both.

Erin Sheley is a writer and attorney in Washington, DC.

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