My Response to Professor Tillman on the Unitary Executive
In a recent guest post, Seth Barrett Tillman argues that defenders of the unitary executive (that is, the view that all executive power must be held by the President) are bound to accept his claim that the President and Vice President do not hold “Office[s] under the United States” for purposes of Article I, Sections 6 and 9. That is so, he says, because both arguments depend on practice from the Washington administration, so if one finds Washington administration practice conclusive in one case, it must be conclusive in the other. Though his post is directed specifically to my sometime co-author Saikrishna Prakash, as a defender of the unitary executive I'll offer a brief response.
I think the two situations are quite different. The unitary executive theory does not depend on Washington administration practice to overcome the most obvious meaning of the Constitution’s text. Rather, the most obvious (original) meaning of Article II, Section 1 (“The executive Power shall be vested in a President of the United States of America”) is that the President controls the exercise of all power considered “executive.” And “executive Power” had a substantive content in pre-ratification eighteenth-century discourse – true, its outer contours were disputed, but at its core it meant law execution and (as Professor Prakash and I have argued) basic foreign affairs powers.
Thus, when the text says that the President shall have executive powers, its most obvious meaning is that no other person (apart from someone the President oversees) can exercise them. (As Justice Scalia argued in Morrison v. Olson, “this does not mean some of the executive power, but all of the executive power.”) That is the fundamental principle of the unitary executive. This textual reading is confirmed by the practice of the Washington administration, but it does not depend on the practice of the Washington administration.
Professor Tillman, in contrast, wants to use Washington administration practice to overturn the text's most obvious meaning. He wants to say that the presidency and vice presidency are not “Office[s] under the United States” for purposes of the incompatibility clause of Article I, Section 6 and the emoluments clause of Article I, Section 9. But the text repeatedly says that the presidency is an “Office” (e.g., in Article II, Section 1: “He [the President] shall hold his Office during the term of four years …”). And it is natural to think, since the “Office” is within the national government of the United States, that it is an “Office under the United States.”
I’m not saying that Professor Tillman is wrong about “Offices” or that it is impermissible to use Washington administration practice to contradict the text’s most obvious meaning. I’m only saying that there is a big difference between confirming the text’s most obvious meaning and fighting it. Doing the former does not commit one to doing the latter.