# Unitary Executive Theory

The theory of a Unitary Executive posits that the President holds full executive power over the United States government. It is defined by John Yoo (opens new window), former Deputy Assistant Attorney General under President George W. Bush, as "when it [the Constitution] grants the president the executive power, it grants him a reservoir of executive power that's not specifically set out in the Constitution" (Chang 2019). This reservoir of power can be exercised through Executive Orders, Presidential Proclamations, and Presidential Memorandums.

# Executive Order 12333

The power that the executive branch yields when conducting surveillance is one of the most powerful legal tools available to the government. The authority to conduct surveillance at the executive-level is important because it means that they do not require congressional or judicial approval to conduct surveillance – as long as the program follows U.S. law, the executive branch can operate their own programs free from oversight.

Executive Order 12333, Part 2 – Conduct of Intelligence Activities

Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:
(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;
(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws;

Executive Order 12333 is an extension of executive authority, operating in stark contrast to FISA and the Patriot Act, which are legislative acts by Congress and require judicial oversight. The original executive order was signed in 1981 and continues to play a major role in the sanctioning of mass surveillance and data collection programs.

# Authority for Use of Military Force To Combat Terrorist Activities Within the United States

Yoo’s application of the Unitary Executive, shown in a memo from his office for the President’s Counsel on October 23, 2001, stated that the President “has ample authority to deploy military force against terrorist threats within the United States,” which included “employing electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies” within the United States (U.S. Department of Justice 2001).

The implementation of the Unitary Executive in Yoo’s memo goes against the Posse Comitatus Act (opens new window), which prevents the military from enforcing domestic laws and policies within the United States. Granting the President the ability to utilize the military for domestic law enforcement is a dangerous power that can lead to martial law and further expansion of the surveillance state. This memo, taken from the Department of Justice’s public archive, can be cited by any future administration to justify the surveillance and use of military force against its citizens.

# Interview with John Yoo

This interview with John Yoo and NPR's Alisa Chang outlines the former Deputy Assistant Attorney General's perspective on the Unitery Executive Theory.

# Sources

  1. Chang, Alisa, and John Yoo. “Former Deputy Assistant AG Offers Perspective On Unitary Executive Theory.” National Public Radio, May 8, 2019. https://npr.org/2019/05/08/721552525/former-assistant-ag-offers-perspective-on-unitary-executive-theory (opens new window).

  2. Exec. Order. No. 12333, 46 Fed. Reg. 59941 (December 4, 1981), https://www.archives.gov/federal-register/codification/executive-order/12333.html (opens new window).

  3. United States Department of Justice. Office of the Deputy Assistant Attorney General. Memorandum for Alberto R. Gonzales, by John Yoo and Robert Delhunty. Washington, D.C., 2001. https://www.justice.gov/sites/default/files/opa/legacy/2009/03/09/memomilitaryforcecombatus10232001.pdf (opens new window) (Archive).