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American Society for Political and Legal Philosophy / NYU Press




This essay, part of a larger project, considers theories of the unitary executive and what the best of these theories imports for the rule of law and the future of constitutional theory as a whole. As we see it, at least in a sense that predates Bush administration apologist John Yoo,' the unitary executive is here to stay. Precisely because the American constitutional executive is a unitary power, President Obama can close Guantanamo unilaterally, without Congress's leave. President Obama, on his own, can also revoke Bush's executive orders regarding secrecy. He can renounce Bush administration memoranda attempting to justify torture, and he can prohibit further acts of torture during his tenure in office. Obama cannot, however, coherently renounce the unitary executive at the same time that he acts unilaterally to undo excesses of the last unitary executive. In any case, to recall Justice Robert Jackson's formulation from Youngstown Sheet and Tube Co. v. Sawyer, the "imperatives of events and contemporary imponderables" are going to require strong executive power.2 The same basic thought appeared some five generations before Justice Jackson's time when Alexander Hamilton, an early proponent of a unitary executive, said in The Federalist that because "[t]he circumstances that endanger the safety of nations are infinite . . . no constitutional shackles can wisely be imposed on the power to which the care of it is committed."3

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