In light of the attention given the "
unitary executive theory" during the Alito hearings, I borrow from
myself:
The legitimate function of the state is to protect its citizens from predators and parasites, it is not to protect predators and parasites. The critics of aggressive defense like to proclaim their dedication to civil liberties, but their statist agenda in domestic matters betrays their selective dedication to liberty.
There is a balance to be struck between privacy and liberty, but it should not -- and need not -- be struck in favor of our enemies. The Constitution is, first and foremost, a mutual defense pact, not a suicide pact.
I certainly don't believe in the extreme version of the unitary executive theory, in which the president is a law unto himself. But (continuing to borrow from myself) I do believe that the president has wide latitude in foreign affairs -- which encompasses the defense of the nation. I quote Sai Prakash, who writes about the Constitution's Executive Vesting Clause (Article II, Section 1, Clause 1) in
The Heritage Guide to the Constitution (pp. 179-82):
The [Executive Vesting Clause] . . . accords the President those foreign-affairs authorities not otherwise granted to Congress or shared with the Senate. . . .
The Articles of Confederation lacked an independent chief executive. Instead, the Continental Congress exercised the executive power, appointing and dominating the secretaries of the executive departments. Unfortunately, law execution under the direction of a distracted, plural executive was neighter vigorous nor swift. Congress likewise proved a poor steward of foreign affairs, with American diplomats complaining that Congress could not act with the requisite speed or secrecy. . . .
Resolving to avoid the problems plaguing state and national executives, the Constitution's makers created an energetic, responsible, and unified executive. . . . The Anti-Federalists well understood the Framers' design and criticized the unitary executive [but they lost the argument: ED] . . . .
. . . [T]he delegates [to the Constitutional Convention] spoke of the President's principal foreign-affairs role, oftentimes referring to the Senate's role in treaty-making as a limited exception to the grant of foreign-affairs authority to the President. . . .
. . . [T]raditional rules of statutory interpretation require us to take seriously the differences in phrasing across the three vesting clauses. Artilce I, Section 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States. . . .") makes clear that it vests no authorities separate from those enumerated in the rest of Article I. In contrast, Article III, Section 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish.") clearly vests the federal courts with judicial authority. The Executive Vesting Clause reads like its Article III counterpart, in sharp contrast to the Article I introductory clause. . . .
In a case touching upon foreign affairs, the judiciary has recently reaffired that the executive power grants foreign-affairs authority to the President. See American Insurance Ass'n v. Garamendi (2003). This marks a departure from prior case law, which had grounded the executive's foreign-affairs powers not in any constitutional text, but in necessity and sovereignty. See United States v. Curtiss-Wright Export Corp. (1936).
John Yoo and James C. Ho, writing in the same volume about the president's role as commander in chief (pp. 195-8), have this to say:
. . .[S]ome originalist scholars have concluded that Congress's war power is limited to its control over funding and its power to impeach executive officers. They contend that the President is constitutionally empowered to engage in hostilities with whatever resources Congress has made available to the executive. . . .
In summary, the argument for executive initiative rests on the background understanding that the vesting of "executive Power" and the "Commander in Chief" designation together constitute a substantive grant of authority to the President to conduct military operations.
The Framers intended the executive to be a passive enforcer of laws passed by Congress that bear on domestic affairs (and those laws were to be strictly limited in scope by Article I, Section 8, of the Constitution). At the same time, the Framers intended the executive to defend Americans actively against enemies foreign and domestic. No one has put it more clearly than
Justice Felix Frankfurter:
. . . [W]e have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.' . . . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. . . . To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action . . . is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce.
