A Political Perspective on the Theory of the Unitary Executive

This Essay offers a brief and highly speculative political, intellectual, and legal history of the theory of the unitary executive in the late twentieth century. I suggest that that theory developed in three stages, which I label the weak, the strong, and the super-strong versions, and confronted one alternative that superficially resembled the theory of the unitary executive but that actually served quite different political, intellectual, and legal purposes. Further, I suggest that the second stage followed the first, and the third the second; the weak version was articulated on the arrival of the Reagan administration in 1981, the strong version during the late Reagan and Bush I administrations, and the super-strong version during the Bush II administration. And, finally, as those temporal linkages suggest, I will argue that each version of the theory and its alternative fit into the political agendas of these four administrations and were thought to be solutions to specific problems each administration faced. A preliminary note on what I mean by a “theory” of the unitary executive: my argument is, in part, that such a theory emerged out of the political setting the Reagan administration faced. This is not to say, of course, that arguments for the proposition that the President has important and indivisible powers were not made before then, nor that there were no earlier cases and practices supporting that proposition. Indeed, a theory, in the sense I use the term, would be senseless absent such cases and practices. But, I believe, when claims