Unitary executive theory

Unitary executive theory is a U.S. legal doctrine derived from the English concept of prerogative power, which gives the President the right to operate in a supra-legal manner. Most, but not all, U.S. examples are related to warfare, and advocates of the theory claim it was the intent of the Framers.

The first clear major war started on sole Presidential authority was the Korean War; the need to respond quickly to nuclear threat caused further delegation during the Cold War, but Congress began to challenge the authority after the Vietnam War with the War Powers Resolution; Lyndon B. Johnson had made major combat commitments with the authority of the Gulf of Tonkin Resolution, later seen as given in haste.

Constitutional draftng
Alexander Hamilton wrote of "presidential unity" in Federalist 70, the document perhaps most frequently cited by supporters of the unitary theory. Charlie Savage interprets this as simply meaning the President need not first reach a consensus within the Executive, as was, for example, the case in the Second World War Japanese Cabinet. Federalist 69, however, said that while the President, as did the British King, would oversee the military, he would be "first general", with much less power than a king, for the power to create armies and declare war is given to the Congress.

Walter Berns observed that in the "Records of the Federal Convention of 1787," on June 1, a mere two weeks into the life of the convention, James Wilson "moved that the Executive consist in a single person." Charles Pinckney seconded the motion. Then, "a considerable pause" ensued, and the chairman asked if he should put the question. "Doc Franklin observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put and Mr. Rutledge animadverted on the shyness of gentlemen. . . ."

Why the silence? Why were they shy? Apparently because the proposal was so radically different from the executives provided in the state constitutions (and the fact that there was no executive whatsoever under the Articles of Confederation). All of these governmental bodies (except New York), and especially those whose constitutions were written in the years 1776-78, included "almost every conceivable provision for reducing the executive to a position of complete subordination," as Charles C. Thach Jr., noted in "The Creation of the Presidency, 1775-1789." The gentlemen were also shy because the provision for a single executive reminded them of George III and of what he had done.

Some go beyond the unitary theory to speak of unilateral Presidential authority, especially in the George W. Bush Administration.

Lincoln and the Civil War
During the American Civil War, President Abraham Lincoln declared martial law in the Confederate States of America, but also took extralegal measures within the Union. Ex parte Milligan is one key precedent.

Harry Truman
While the Korean War was soon under United Nations authority, the reality was that Harry S Truman ordered U.S. military forces into combat, to the defense of an ally with limited sovereignty. He saw the act as part of the containment policy.