united-states constitutional-law us-constitution
Question Regarding Extent of Presidential Power, the Take Care Clause, and &quot;Unitary&quot; Executive Theory/ Executive Power
<p>This question is regarding the theoretical limits and ability of the power of the President of the United States.</p>
<p>Under a strong or absolute Unitary Executive Presidential powers framework, would there be any legal basis for the President being able to unilaterally execute or implement laws?</p>
<p>Speaking in terms of areas in which the executive branch is granted authority, take for example 31 U.S. Code § 321 regarding the authority of the Secretary of the Treasury:</p>
<blockquote>
<p>(a)The Secretary of the Treasury shall—<br />
(1)prepare plans for improving and managing receipts of the United States Government and managing the public debt;<br />
(2)carry out services related to finances that the Secretary is required to perform;<br />
(3)issue warrants for money drawn on the Treasury consistent with appropriations;<br />
(4)mint coins, engrave and print currency and security documents, and refine and assay bullion, and may strike medals;<br />
(5)prescribe regulations that the Secretary considers best calculated to promote the public convenience and security, and to protect the Government and individuals from fraud and loss, that apply to anyone who may—</p>
<blockquote>
<p>(A)receive for the Government, Treasury notes, United States notes, or other Government securities; or<br />
(B)be engaged or employed in preparing and issuing those notes or securities;<br />
(6)collect receipts;</p>
</blockquote>
</blockquote>
<p><a href="https://www.law.cornell.edu/uscode/text/31/321" rel="nofollow noreferrer">https://www.law.cornell.edu/uscode/text/31/321</a></p>
<p>Or take 28 U.S. Code § 516 regarding United States litigation authority:</p>
<blockquote>
<p>Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.</p>
</blockquote>
<p><a href="https://www.law.cornell.edu/uscode/text/28/516" rel="nofollow noreferrer">https://www.law.cornell.edu/uscode/text/28/516</a></p>
<p>Would the President themself be able to for example &quot;manage the public debt&quot;, &quot;issue warrants for money drawn on the Treasury consistent with appropriations&quot;, &quot;mint coins, engrave and print currency&quot;, or directly engage in litigation on behalf of the United States?</p>
<p>(I am speaking to traditional executive departments and officers falling under pure executive control, not independent agencies which may be insulated due to carrying out quasi-judicial or quasi-legislative tasks such as outlined in <em>Humphrey's Executor v. U.S.</em>)</p>
<p>Taking the Constitution's provisions that the &quot;executive Power shall be vested in a President of the United States of America&quot; and they &quot;shall take Care that the Laws be faithfully executed&quot;. U.S. Const. Art II Sections 1&amp;3. Could it be argued the vesting of said executive power in the President alongside the Congressional granting of such authority to the the executive branch would allow for the President to unilaterally execute or otherwise implement laws or the abilities of other people or entities within the executive branch?</p>
<p>(Even considering factors like <em>Youngstown</em>, given the President would in theory be acting to an &quot;implied authorization&quot; since such powers are granted to the executive branch by Congress would it be possible to square such abilities and actions? “[W]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” <em>Youngstown, 343 U. S.</em>, at 635 (Jackson, J., concurring))</p>
<p>Apologies if the question is disjointed, I would be happy to elaborate if needed. Additionally, I'm not really asking regarding the implications or logistics of the President attempting to effectively administer laws themselves, since that would clearly be inefficient and likely problematic (nor am I advocating they should), I am merely curious as a question of legal authority if they would be able to, and the legal arguments counseling in favor/ against. Thank you!</p>

<p>This is a developing area of law and there really aren't clear answers.</p>
<p>Historically, the courts have largely taken the position that when Congress says something, such as delegating enforcement power to a Presidentially nominated, Senate approved officer of the United States government, that it means it and that the President has only indirect power to take that action through the government officer in question if that government officer is the President's subordinate (often indirectly through another political appointee). When power is delegated by Congress to a civil servant with civil service protections, the President's authority to direct how that power is exercised is even weaker.</p>
<p>The U.S. Supreme Court and conservative legal scholars have toyed with invalidating those laws as unconstitutional if applied in a manner contrary to the Unitary Executive theory, but has certainly not adopted that doctrine wholesale. The non-delegation doctrine has been applied inconstantly to limit Congressional delegation of legislative power to independent agencies, and at one high water mark, the Supreme Court invalidated the process of the legislative veto over regulatory action which nonetheless remains on the books in a great many statutes and is honored notwithstanding clear case law disallowing it. But, there is no body of case law even that strong behind the Unitary Executive theory.</p>
<p>It would be more accurate to characterize the Unitary Executive theory as a residual interpretive guide in cases where legislative is vague or ambiguous.</p>
