One key source for the idea of the unitary executive is Alexander Hamilton’s case for an “energetic” executive in Federalist No. 70. “A feeble Executive implies a feeble execution of the government,” Hamilton wrote. “A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” The executive needs energy, he continued, and unity — as opposed to a plurality or multiplicity of executives — is the ingredient that makes an active and energetic president possible.
There are a few issues here. The first is a matter of constitutional interpretation. In addition to Hamilton, the unitary executive theory leans heavily on Article II, Section 1 of the Constitution, which states that “The executive power shall be vested in a President of the United States of America.” Proponents of the unitary executive theory believe that this phrasing, “the executive power,” grants the president a set of inherent and implied powers including near absolute authority over foreign affairs. But this reading of the executive vesting clause runs into a small problem: the specificity of the rest of Article II. The framers took care to enumerate the various powers of the presidency, a choice that does not make sense if they had written a general grant of authority for the president.
In fact, as Julian Davis Mortenson notes in a 2020 article for the University of Pennsylvania Law Review, there is strong evidence from contemporaneous 18th-century sources that the vesting clause did little more than “convey the authority to execute the laws.” This power, he observes, “was an empty vessel that authorized only those actions previously specified by the laws of the land.” And a quick glance at the records of the Constitutional Convention supports an even narrower reading of the vesting clause: that it exists only “to settle the question whether the executive branch should be plural or single and to give the executive a title.”
The second issue relates to the other load-bearing pillar of the unitary executive theory, the take-care clause, which provides that the president “shall take Care that the Laws be faithfully executed.” For supporters of the unitary executive, this means that the president has total control over his subordinates; otherwise, how would he know if the laws were being “faithfully executed”? And among the most extreme unitarians, the take-care clause completely insulates the executive from statutory direction and legislative oversight because the president, and only the president, is charged with ensuring faithful execution of the laws.
But this runs counter to what we know about the actual practice of American government in the first decades under the Constitution. For example, lawmakers in the first Congress, many of whom had a direct hand either in writing the Constitution or in fighting for its ratification, saw nothing in Article II that prevented them from creating offices in the executive branch that lay outside the direct control of the president. In a 2019 article for the Notre Dame Law Review, Christine Kexel Chabot shines light on the Sinking Fund Commission, an independent agency — established by Alexander Hamilton, passed by Congress and signed into law by President George Washington — that “carried out open market purchases of U.S. securities with substantial independence from the president.” The president himself could not initiate such purchases “without approval of a majority of the Commission,” and he had little power to replace or remove members of the commission.
