Steven G. Calabresi

The Unitary Executive: Presidential Power from Washington to Bush

This book is the first to undertake a detailed historical and legal examination of presidential power and the theory of the unitary executive. This theory, that the Constitution gives the president the power to remove and control all policy-making subordinates in the executive branch, has been the subject of heated debate since the Reagan years. To determine whether the Constitution creates a strongly unitary executive, Steven Calabresi and Christopher Yoo look at the actual practice of all forty-three presidential administrations, from George Washington to George W. Bush. They argue that all forty-three presidents have been committed proponents of the theory of the unitary executive, and they explore the meaning and implications of this finding.

Federalism and the Rehnquist Court: A Normative Defense

The revival of federalism limits on national power by the U.S. Supreme Court is a happy development for three reasons. First, judicial review is as beneficial and as needed in federalism cases as it is in Fourteenth Amendment cases, and such judicial review does not raise the problems of the countermajoritarian difficulty. Second, Congress cannot be trusted alone to police the federalism boundaries that limit its own power. Finally, federalism is an incredibly important feature of the American constitutional order. This is indicated by (1) the prominence of federalism concerns in the text of our Constitution; (2) the importance of federalism in other countries around the world today; (3) the fact that the economics of federalism suggest some well-known reasons why constitutionally mandated decentralization is a good thing; and (4) the serious concerns about the dangers of excessive national power implicated by the specific issues that the Supreme Courts federalism case law touches upon.

The Legal Significance of Presidential Signing Statements

Presidents have issued signing statements when signing bills into law since the first half of the Nineteenth Century but recently this practice has come under attack. In this short essay, we argue that presidential signing statements ought to be given legal weight for three reasons. First, they are part of a federal statutes legislative history because the presidents concurrence is ordinarily necessary, along with the House and Senates, for a bill to become law. Second, presidential signing statements are deserving of Chevron deference because of the Presidents constitutionally specified expertise as the chief executor of federal law. And, finally, presidential signing statements are a vital mechanism by which the President as the nations unitary head of the executive branch can control exercises of the executive power by his millions of subordinates. For all three of these reasons, presidential signing statements are legally binding on subordinate executive branch personnel and they also ought to be given legal weight by federal and state courts.

Political Parties as Mediating Institutions

The great virtue of the American structural constitutional system of checks and balances, separation of powers, and federalism1 is that it preserves liberty by setting governmental power against itself.2 The great vice of this system is that it reduces the accountability of public officials and of the government in general by making it more difficult for the voters to know which officials and actors in the political system are responsible for any particular set of actions.3 The great debate between presidential and parliamentary forms of democratic government may thus largely come down to a trade-off between the success of the American presidential system in preserving liberty and the success of the British parliamentary system in making the government accountable for what it does.4 While there are many