ABSTRACT This Article considers the recent controversies over claims of extensive executive authority by the Bush Administration and suggests that they stem at least partially from the inartful and tentative phrasing of Article II and the resulting efforts by advocates of executive authority to transfer all available authority to the President. Its analysis begins with the drafting of Article II and the battles over its meaning during the Washington and Adams Administrations, then moves forward to illustrate the ways in which its negative features have repeatedly sparked political crises and inter-branch confrontation, particularly by those who read into the executive’s “unitary” character an entire ideology of executive impermeability and impunity. The Article attempts to illustrate the negative effect of Article II’s wording by suggesting how a revised Article II would read if it were designed to ensure that the presidency should be accountable and democratic in its selection and operation. The new Article would abolish the electoral-vote system, cabin the president’s duty to “take care that the laws be faithfully executed” to ensure that it is not used as an opportunity for extravagant assertions of nontextual authority, and sets up a mechanism by which a President who has been repudiated during an off-year election would be required to revamp her administration or resign. A final reform would shatter the “unitary executive” by placing the legal and law-enforcement activities of the United States under the authority of an elected Attorney General. The Article ends with the proposed text of the new Article II.
Available at: http://works.bepress.com/garrett_epps/2/