1

If the Supreme Court endorses the unitary executive theory, would it allow any President to commit obstruction of justice?

Let's say a President decides to impede a Federal investigation to let someone off the hook, because he has a vested interest, not because he honestly believes that the person is innocent, then would he still be considered liable and punishable by law if the Supreme court fully endorsed the unitary executive theory? Or does a full endorsement of the unitary executive theory by the Supreme Court allow the President to act against the rule of law and abuse it? Let's assume that the country is the United States.

5

Different people have suggested different things as to what constitutes, "the unitary executive theory". The US Supreme Court is not likely to simply adopt such a theory in general terms. It will, instead, rule on a specific case that comes before it, and state the principles behind that ruling.

There are a number of Supreme Court rulings saying that a President must abide by laws limiting presidential authority, perhaps the most famous is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) in which the Court rules that the President did not have authority to seize steel mills to put a stop to a labor dispute that was allegedly endangering national security during the Korean War. Congress had passed a law providing a different method of dealing with such situations, and President Truman did not follow the method established by that law.

The President has broad power over the operations of executive branch agencies, possibly including the right to order an investigation halted for whatever reasons seem good to the president. If such a case came before the courts and they supported the President, presumably they would hold that the President's actions did not constitute obstruction of justice or any other crime.

I find it highly unlikely that the Supreme Court would rule that the President may "act against the rule of law", but they might rule that in particular cases the law implicitly grants the President power to take certain actions that others may not take.

2

The strong version of the unitary executive theory doesn't "allow any President to commit obstruction of justice." Instead, there is no such thing as obstruction of justice under the strong version of the unitary executive theory. Or more precisely, there is no such thing as obstruction of the federal justice system by the US president under the strong version of the unitary executive theory.

However, even some proponents of the strong version concedes that certain actions of the president can still be made to be criminal. See https://www.justsecurity.org/71230/bill-barr-no-lap-dog-just-defending-his-idea-of-the-top-dog/ which describes a memo written by Bill Barr:

the president per se cannot commit obstruction of law, unless he commits an actual crime such as witness tampering

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.