Yeah, it could be scary. But it's hard to tell.
I think we all agree that (except in some rare circumstances?) ultimately the policy positions of the USA government are set and carried out by the President. We can't, for example, have the EPA taking one position and the DOJ taking another position in a trial. The executive has to speak in one voice.
However, that doesn't mean that the executive is superior to the other branches of government.
The rub apparently is when it comes to independent agencies set up by Congress like Independent Counsels that have some executive function but aren't controlled by the President.
I don't know. I
really dislike buzzwords and reducing complicated topics to a couple of words or a phrase. Sometimes it is a meaningful simplification, but too often in politics it's just code to divide people into us/them and black/white groups.
Yoo, et al., have written (at least) 4 papers on their study of the "unitary executive". The last paper, covering Truman through Clinton, is [link|http://law.vanderbilt.edu/faculty/pubs/yoo-unitaryexecinmodernera.pdf|here] (143 page .pdf). I haven't read it or the other three. Here's part of the conclusion of the last part:
p.142-143:
The main controversy during this fourth quarter of American history that bore on the unitary executive was over the constitutionality of the special prosecutor regime set up by the ethics in government act. The important point to note about that controversy is that, notwithstanding the Supreme Court\ufffds approval of the institution of independent counsels in Morrison v. Olson,713 the Ethics in Government Act was allowed to lapse in June of 1999 after both Democrats and Republicans had grown to appreciate its flaws. This rejection of the Ethics in Government Act some twenty years after it was first enacted is quite reminiscent of the repeal of the Tenure of Office Act under Grover Cleveland, which also occurred some twenty years after that statute was enacted. In both case, Congress was tempted to experiment with unconstitutional limits on the president\ufffds removal power, and in both cases the unconstitutional regime did not work out and was eliminated. The story of the rise and fall of both the Tenure of Office Act and the Ethics in Government Act are eerily similar and stand as stark reminders of the dangers that can occur when the power to execute the law is placed outside of presidential control.
That the unitary executive would emerge from this era as an open constitutional question is rendered all the more remarkable in light of the radical expansion of presidential power during this era. This serves a stark refutation of those who have argued that the increase in executive authority justified sanctioning greater legislative intervention in the execution of the law.714
We do not expect, however, that the demise of the independent counsel law will forestall further controversy surrounding the unitariness of the executive branch. Indeed, many of these issues have begun to play themselves out once again during the Administration of George W. Bush. The question about the proper scope of presidential control over the execution of the law arose when creating the new Cabinet-level Department of Homeland Security. Given the sensitive nature of the antiterrorism work to be conducted by the Department, Bush was adamant that the president have the unilateral power to remove Department officials at will.
Disagreement by Senate Democrats led to an impasse that would ultimately be settled by the 2002 midterm elections, in which the Republicans successfully gained control of the Senate. It is thus likely that we have not yet seen the last of the debates surrounding the unitary executive. It is our hope that in reviewing the history of presidential practices with respect to the execution of the law, this project will help provide the historical context in front of which the relevant legal and normative issues can be discussed.
It doesn't seem to be a very strong argument that Congress
can't constrain executive power through the use of independent agencies like ICs. After all, the USSC said they could. Rather that Congress can change its mind about them when the majority changes...
Bottom line for me: I try not to get worked up by commentaries like Blumenthal's. Why didn't he give complete sentences in his quotes? I'm usually suspicious of fragmentary quotes - it's too easy to take things out of context. I would want to at least skim through Yoo's 4 papers more carefully before coming to any conclusion about whether it advocates some sort of Imperial Presidency.
FWIW.
Cheers,
Scott.
