Unitary Executive Theory
Here is an article from RawStory.com that indicates that President Bush has used an obscure doctrine, "Unitary Executive Theory", 95 times to expand his power as President.
At its core, this theory says that the President and the President alone has the power to determine what is and is not lawful behavior for himself. It assumes that the President is effectively exempt from checks and balances which are so important to our government. And it presupposes that the fundamental powers of the branches of government aren't what we were all taught in school.
We're all told that the Legislative branch (Congress) makes the law, the Judiciary (the courts) interpret the law, and the Executive (President) ensures that the laws are faithfully executed.
Unitary Executive Theory suggests that the Executive shares in the interpretation of the law as well as in the making of the law, thus making the President much closer to a king than to what we generally think of as our leader.
Oh, and proponents of this theory seem to count among their number a large number who either don't realize or choose not to recognize that the Constitutional declaration of the President as "Commander-in-Chief" only applies to the armed forces.
Oh, and of the 95 times he's used it, the most recent was... you guessed it, in the signing statement released along with his signing the McCain anti-torture legislation. Bush seems to believe that simply by asserting this authority in a signing statement, he exempts himself from any oversight by the Supreme Court in the future, should he decide not to follow the bill he is signing into law.
Read the article. And think hard about whether you really believe this country was so carefully set up with checks and balances only to exempt one man entirely from those checks. The Founding Fathers would have had to be morons to work so hard to prevent any one corrupt person or small group from weilding ultimate power and then turn around and hand ultimate power to a single person.
Liam.
P.S. I've read several reports, which I'm trying to verify, that Sam Alito, Supreme Court nominee, is a strong supporter of the Unitary Executive theory. He has apparently spoken highly of it in a 2001 speech to the Federalist Society
posted by Liam at 1/05/2006 06:32:00 PM
5 Comments:
Alito brought it up himself, yesterday in questioning:
[Sen Edward] Kennedy: You bend over backward to find even the most aggressive exercise of executive power reasonable ... will you ever be able to conclude that the president has gone too far?
Alito: “Our Constitution gives the judiciary a particular role, and there are instances in which it can override the judgments that are made by Congress and by the executive. But for the most part, our Constitution leaves it to the elected branches of government to make the policy decisions for our country. ...
“To my mind, the concept of the unitary executive does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president.”
Wednesday, January 11, 2006 12:06:00 PM
Wow. Thanks, Ross, for pointing this out. I've not been paying as much attention to the specifics of the hearings as I should, what with lack of sleep due to the newborn.
This is really scary.
The problem of course is that while it SOUNDS reasonable to say that executive power does and should rest with the executive branch, it completely ignores the great lengths the framers of our country's structure went to to provide for extreme checks and balances.
NO one person or small group of people is supposed to weild that much unchecked power.
In my view, the flaw in this theory, espoused by Alito and others, is that it equates any oversight of executive power WITH executive power.
In choosing to ignore the aspects of Unitary Executive theory which deal with the SCOPE of executive power, the theory is basically trusting the President and his Administration to weild their power in a reasonable and uncorrupt fashion.
This is EXACTLY one of the same two weakness that are the downfall of Communism as a form of government: The assumption that it is possible to have all of the power consolidated in a small ruling class without having any of them get power drunk and abuse their power.
Ultimately, to me, the failings of UET can be summed up using this example: We entrust the enforcement of laws to the police department, and yet no one seriously believes they should be free to enforce those laws in any way they see fit without oversight.
It merely takes a look at Rodney King or Amadou Dialo to see why we entrust the power to the police department, but then require oversight OF that department. SOMEONE has to have the power to investigate misdeeds and complaints. In the case of the President, that someone is the court system, and it scares me greatly that we have someone poised to take a spot on our highest court who doesn't believe it's the right OF that court to oversee the President.
Liam.
(For the curious, the other failing in the theory of Communism is that it relies on people working just as hard for the common good as they would for their own self interest, which is absolutely counter to all psychology of human nature).
Wednesday, January 11, 2006 12:22:00 PM
For the record: I got those comments from a site which, I later realized, said it "took certain liberties" with the questions answered by senators, but left Alito's remarks verbatim. So Kennedy may not have said "bend over backwards" .. etc.
Anyhow, it sounded to me that Alito has a different definition of UET ... not that the President has untrammeled authority to pick and choose which laws to obey, but that anyone else in the executive branch under him must obey his decisions (based on the law). I'm not sure if my interpretation is correct, nor am I sure that I agree.
Later in questioning, Alito said something to the effect that no one, not even the President, is allowed to disobey the law, as long as that law is Constitutional.
Thursday, January 12, 2006 1:54:00 PM
Then there's hope.
I actually sort of agree with that part. It's always been pretty well understood that anyone in the Executive Branch "serves at the pleasure of the President".
I think that's perfectly reasonable. It's like saying that if I own a company, and someone within the company starts making representations ABOUT the company which are not in line with the philosophies by which I run the company, that I can fire them.
And if that's what Alito believes, I have no problem with that.
Another way of putting that is the famous "the buck stops here" sign that (was it Truman?) had on the Oval Office desk. The President bears responsibility for anything done by the Executive Branch, and so therefore has authority over everything that happens there as well.
The problem is, in most places where I've read about UET, it isn't about how much power the President weilds WITHIN the Executive Branch, it's about fundamentally altering the balance of power between the branches of government. It's about limiting the oversight powers of both Congress and the Judiciary OVER the President.
And clearly, by referencing it repeatedly in his "signing statements", the President feels that UET is the presidential equivalent of crossing your fingers while making a statement.
I read somewhere today that President Bush has used UET as justification at least three times for violating U.S. law. I didn't find the details, although I suspect that two of them are the whole "Enemy Combatants don't have rights" thing and the NSA wire tapping thing.
And apparently it's hard to find any legal scholar out there who defends UET and its legality/constitutionality other than those who belong to the Federalist Society, which is pretty much synonymous with the neo-conservatives who have wrested power from ordinary, intelligent, thinking Republicans like my wife and her father.
Liam.
Thursday, January 12, 2006 2:20:00 PM
Oh, but I should also point out, Alito has left a loophole large enough to drive a truck through there.
Because the whole basis of the UE theory is the supposition that the CONSTITUTION grants this enormous, almost kingly level of power to the President.
That's the whole source of the debate, whether Congressional/Judicial oversight and checks on Presidential power are unconstitutional.
So while the "as long as that law is Constitutional" may very well have been innocuous, if Alito DOES subscribe to the more extreme version of UET, then by definition the law applying to the President would not BE Constitutional (under the theory).
Damn, I'm thinking more like a lawyer every day.
Liam.
Thursday, January 12, 2006 2:32:00 PM
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