Opinion: Unitary executive theory at odds with a constitutional presidency

The restoration of a constitutional presidency requires repudiation of the ill-conceived unitary executive theory.

Untethered to anything said or done in the Constitutional Convention and the various state ratifying conventions, the unitary executive theory was born in the minds of young Justice Department lawyers, including John Roberts and Samuel Alito, during the Reagan Administration. It was first given voice in a lonely dissenting opinion written by Justice Antonin Scalia in Morrison v. Olson (1988). Scalia’s argument, emphatically rejected by Chief Justice William Rehnquist and fellow conservatives on the Supreme Court, claimed that the Article II phrase “executive power” was a term of art that the founders created to concentrate in the presidency every power conceivably “executive”