Vice President Dick Cheney’s ascent to power, under President George W. Bush, appeared to grant him the powers and privileges of the presidency. This supposition was depicted in 2018’s feature film Vice. The film presents a multitude of real life events, political jargon, and legal terminology. One example of this was the repeated use of the term “Unitary Executive Theory”. According to the Yale Law Journal, the Unitary executive theory holds that “The executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him.” In other words, the president’s power is restricted only by the U.S. Constitution, while Congress has little to no check on the White House. This has lead to a fierce debate that questions the extent of presidential power. Despite this, Dick Cheney and his staff drafted memos that drew on years of judicial jurisprudence to justify their actions. The effects of the Unitary Theory could be seen in full force after the 9/11 attacks, when the Bush administration orchestrated many questionable acts under the veil of national security.
There are years of judicial precedent that are cited to provide validity to the claims of the Unitary Executive Theory. The case Myers v. United States was brought to the U.S. Supreme Court on December 5, 1923. In this case, a postmaster was removed by the president without the approval of the Senate. According to precedent, “Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate…” The Supreme Court questioned whether or not the 1876 federal statute restricted the president’s constitutional powers. On, October 25, 1926, the Court came to the conclusion that the law did restrict the president’s powers. The Court further argued that the founders drafted the Constitution as vesting in the President, alone, the power to remove officers.
Another case that dealt with executive privilege is United States v. Nixon, argued on July 8th, 1974. In the aftermath of the Watergate scandal, there was a significant amount of evidence to suggest that President Nixon was complicit. When subpoenaed, he resisted by providing edited versions of the tape recordings. President Nixon wanted to quash the subpoena because he believed he had the authority to do so under his executive privilege. In the opinion of United States v. Nixon, the Court stated that“President’s counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications…[i]t is emphatically the province and duty of the judicial department to say what the law is.” This means that they do agree that there are executive privileges, however, in this particular case they felt it did not apply.
John Yoo, Deputy Assistant Attorney General in the Office of the Legal Counsel of the U.S. Department of Justice, served in the Bush administration from 2001-2003. Yoo was an early supporter of the Unitary executive theory. He has gone on record stating that, “We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.” This legal philosophy coupled with being a phone call away from the president foreshadowed events soon to come in the Middle East. Another important member of Vice President Cheney’s staff was David Addington, who served as the VP’s Chief of Staff. He shared Yoo’s philosophy on executive power during wartime. Both Yoo and Addington helped draft memos that utilized the Unitary Executive Theory, on behalf of Dick Cheney, to allow the President to wield unchecked power over the military.
Although the President is the Commander-in-Chief, there are restrictions placed on his military authority. However, the Unitary Executive Theory would allow President Bush to expand his powers during times of war which was observed after 9/11. According to the American Constitution Society, the Unitary Executive Theory allows the President to control military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering. President Bush also utilized aggressive signing statements which granted him the ability to expand presidential power. This allowed President Bush to interpret the Constitution “in a manner consistent with his constitutional authority to supervise the unitary executive branch.” Many questioned the extent to which President Bush expanded presidential power. Journalist Scott Horton stated that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship…” Being able to bypass Congress and implement a wide range of policies with little to no congressional approval made it look like he could practically do whatever he wanted.
Although the aggressive use of the Unitary Theory has not been in full effect since the early 2000s, it has resurfaced in mainstream politics. The newly appointed Justice Kavanaugh finds the Unitary Executive Theory necessary in specific cases. In his dissent in PHH Corporation v. Consumer Financial Protection Bureau, he writes that “the Constitution lodges all “executive” power in the hands of the president.” The case revolved around Congress forming the Consumer Financial Protection Bureau (CFPB) to prevent the recurring problems that led to the 2008 housing market crash. The CFPB structure is led by a single Director who could only be removed for a “good cause” like insufficiency and neglect of duty, but not policy disagreement. Justice Kavanaugh believes that it is within the president’s authority to remove executive heads. Although the U.S. Appeals Court did side with the CFPB, Justice Kavanaugh now takes that same philosophy with him to the Supreme Court.
For years the Unitary Executive Theory has been at the crux of debates that question the extent of executive power. Many believe that it implies a situation where the president is in a position to commit gross abuses of presidential power. Others believe that it is necessary for there to be a strong unitary executive, especially during wartime; because of this they admire the Unitary Theory. President Bush and Vice President Dick Cheney utilized the theory and justified its use with years of jurisprudence. The Unitary Executive Theory is still in the Department of Justice’s records which means it can still be cited at any time. The Unitary Executive Theory has given the president the means necessary to bypass Congress and wield immense power and history shows just how all encompassing that power really is.