In the Justice Department’s Office of Legal Counsel (OLC) in the 1980s, “unitary” meant unitary, as in e pluribus unum. When Deputy Assistant Attorney General Samuel Alito and his colleagues in OLC used the phrase “unitary executive,” they used “unitary” to convey two kinds of oneness. The executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him. In 2000, then-Judge Alito participated in a discussion of executive power, and noted his endorsement of the unitary executive theory that he had espoused while at OLC.

Over the next few years, “unitary” in “unitary executive” took on an added meaning: allowed to depart from the law, including the law of war, in some circumstances. When Judge Alito came before the Senate Judiciary Committee as a nominee to the Supreme Court, he was asked whether his endorsement of the unitary executive meant that he agreed with aggressive claims of executive authority to disregard legal constraints.

 
Citation
John C. Harrison, The Unitary Executive and the Scope of Executive Power, 126 Yale Law Journal Forum, 374–380 (2017).
UVA Law Faculty Affiliations
John C. Harrison