Episode 2 of the University of Miami School of Law's Constitutional Crisis Seminar features Peter Shane, the Jacob E. Davis and Jacob E. Davis II Chair at Moritz College of Law at Ohio State University. He joins us to discuss the legal theory at the heart of legal claims for expanded Presidential power, the Unitary Executive theory. After setting out the basis for the view that the Constitution gives the President such sweeping control of government as to prevent most Congressional attempts to structure and control it, Professor Shane offers his critique on both originalist and textualist grounds.

Peter Shane is a towering figure in US constitutional and administrative law. He’s served in the Executive Branch, at the Administrative Conference of the US, been a law school Dean, visited at many law schools, and recently finished a term on the Board of Directors of the American Constitution Society. He is the author of a book on separation of powers, Madison’s Nightmare: Executive Power and the Threat to American Democracy – published in 2009, making it truly timely and indeed prescient. In this lecture he lays out the roots of the Unitary Executive theory, notably a reading of Art. II, Sec 1 of the Constitution, and the Supreme Court’s 1926 Myers decision by Chief Justice and former President William Howard Taft. Professor Shane then explains why he believes the Unitary Executive theory is fundamentally mistaken based on both history and text of the Constitution. The Framers did not want government by committee, so they wanted a single and effective executive, but they clearly intended, Shane argues, for Congress to have powers to structure and in some ways limit the executive branch—a view supported by early practice and by considering the import of language beyond the start of Art. II and also parts of Art. I, which empowers Congress.