Boston University, School of Law
This is a revised version of introductory remarks to a panel entitled The Scope of Executive Power held on October 12, 2007, at Boston University Law School's symposium, The Role of the President in the 21st Century. It focuses on an argument advanced by Charlie Savage, among others: that the Bush administration has forged a breathtakingly robust view of the scope of executive power by combining (1) the original Unitary Executive thesis, which insists on the "exclusivity" of certain plenary presidential powers; with (2) a new Unitary Executive thesis, which insists on a vastly expanded vision of the "scope" of those powers - powers found nowhere in the Constitution's text or even fairly derived (arguably) from its original public meaning. After clarifying the theoretical distinction and practical upshot of these nominally identical positions, I briefly offer two observations. First, while it would be entirely appropriate to "candidly and transparently" debate whether new perceived threats require an expanded scope of executive power, it is extremely dangerous to cloak the true stakes of this debate with the expedient veneer of a new (and, to most minds, indefensible) monarchical executive theory, which disingenuously claims to be coextensive with the defensible, if controversial, original Unitary Executive theory. Second, the consequences of this constitutional debate for international law remain underappreciated. Because of the nature of the international system - and, in particular, customary international law's acute sensitivity to authoritative assertions of power - what U.S. executives do and say often influences what other states do and say, potentially altering the evolution and shape of international law. Ironically but tragically, the widespread repetition of claims and practices initiated by the current U.S. executive branch may therefore, in the long term, diminish rather than enhance the real power of the United States, including its executive: in certain areas, it already has. In fact, the exercise of an exorbitant scope of supposedly inherent executive power may well (as it did in the aftermath of the Nixon administration) culminate in precisely the sort of reactive statutory constraints and de facto international diplomatic obstacles that proponents of a broad scope of executive power regard as misguided and a threat to U.S. national security in the twenty-first century.
The Scope of Executive Power in the Twenty-First Century: An Introduction,
Boston University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/482