The Unitary Executive Theory in Comparative Contrast

Journal Article: The Unitary Theory in Comparative Contrast

Journal: University of California, College of the Law San Francisco Law Journal

Date of Publication: November 2020

Author: David M. Driesen, University Professor Emeritus, Syracuse University, College of Law. He is the author of several books, including The Specter of Dictatorship: Judicial Enabling of Presidential Power (Stanford University Press). More on Driesen’s work can be found here. His email address is driesen@law.syr.edu

How to Cite: Driesen, D.M. The Unitary Executive Theory in Comparative Context, 72 UC Law SF L.J. 1 (2020). https://repository.uclawsf.edu/hastings_law_journal/vol72/iss1/1

Abstract: The debate over the unitary executive theory—the theory that the President should have sole control over the executive branch of government—has proven extremely parochial. Supporters of the theory argue that the original intent of our country’s founders requires presidential control, including a power to remove federal officials from their posts for political reasons. Opponents of the theory rely on functional considerations and our practice of dispersing power more widely. But neither side examines developments abroad to see what light other countries’ experience might shed on the question of whether the Supreme Court should craft a new rule of constitutional law cementing presidential control over the executive branch of government. This Article examines that experience, primarily through case studies of recent democratic decline in Hungary, Poland, and Turkey.

It shows that centralization of head-of-state control over the executive branch of government provides a pathway to autocracy. Indeed, unilateral presidential control of the executive branch constitutes a defining characteristic of autocracy.

In all of these countries, authoritarian leaders secured legislation or constitutional amendments establishing effective head-of-state control over key bureaucracies that usually enjoy substantial independence in a well-functioning democracy, such as the prosecution service, the electoral commission, and the media authority. Autocrats use this power to shield their supporters from prosecution while persecuting political opponents, to tilt the electoral playing field in favor of the ruling party, and to shrink the public space for debate; thus, severely impairing democracy and the rule of law.

Realization that the unitary executive paves the way for autocracy reframes the unitary executive debate. We must ask whether the Supreme Court should establish a practice by judicial fiat that authoritarians established through legislation and constitutional amendment. This Article explains that our tradition favors a construction of the Constitution that reduces the risk of losing our democracy and urges rejection of the unitary executive theory.

The website for finding the article is here, and a PDF of the article can be found here.

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