The impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the "executive by committee" employed by the Articles of the Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a "constitutional moment" that ratified major changes in the distribution of power within the federal government. Still others have argued that the increased policymaking functions of the modern administrative state justify permitting Congress to impose greater limits on presidential control over the execution of the law. To date, however, a complete assessment of the historical record has yet to appear.
Date of this Version
Christopher S. Yoo and Steven G. Calabresi, "The Unitary Executive in the Modern Era, 1945-2001" (June 2004). Public Law and Legal Theory Papers. Working Paper 12.