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72 Hastings L.J. 1 (2020-2021)

handle is hein.journals/hastlj72 and id is 1 raw text is: Articles

The Unitary Executive Theory in Comparative
The debate over the unitary executive theory-the theory that the President should have sole
control over the executive branch ofgovernment has proven extremely parochial. Supporters of
the theory argue that the original intent of our country's founders requires presidential control,
including a power to remove federal officials from their posts for political reasons. Opponents of
the theory rely on functional considerations and our practice of dispersing power more widely.
But neither side examines developments abroad to see what light other countries' experience
might shed on the question ofwhether the Supreme Court should craft a new rule ofconstitutional
law cementing presidential control over the executive branch of government. This Article
examines that experience, primarily through case studies of recent democratic decline in
Hungary, Poland, and Turkey.
It shows that centralization of head-of-state control over the executive branch of government
provides a pathway to autocracy. Indeed, unilateral presidential control of the executive branch
constitutes a defining characteristic of autocracy.
In all of these countries, authoritarian leaders secured legislation or constitutional amendments
establishing effective head-of-state control over key bureaucracies that usually enjoy substantial
independence in a well-functioning democracy, such as the prosecution service, the electoral
commission, and the media authority. Autocrats use this power to shield their supporters from
prosecution while persecuting political opponents, to tilt the electoral playing field in favor of the
ruling party, and to shrink the public space for debate; thus, severely impairing democracy and
the rule of law.
Realization that the unitary executive paves the way for autocracy reframes the unitary executive
debate. We must ask whether the Supreme Court should establish a practice by judicial fiat that
authoritarians established through legislation and constitutional amendment. This Article
explains that our tradition favors a construction of the Constitution that reduces the risk of losing
our democracy and urges rejection of the unitary executive theory.


f University Professor, Syracuse University, Syracuse University College of Law, 950 Irving Ave.,
Syracuse, NY 13244-6070; driesen~law.syr.edu.

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