The Unitary Executive, Part II: What It Is and Why It’s Bad

The Founding Guys feared tyranny above all else. That’s why they crafted a Constitution with built-in protections against tyranny. These protections are referred to as “separation of powers” or “checks and balances.”

This page nicely explains the protections at an 11th-grade level. At the federal level, “separation of powers” calls for the government to be divided into three branches, with each branch having particular powers. At the same time, each branch has certain powers over the other branches. This is the “checks and balances” part — it prevents any one branch from gaining too much power over the other two. Here’s another kid-level page explaining the same thing. If you went to school in the United States you should have learned this stuff by no later than the sixth grade.

It appears Dear Leader napped through sixth grade Social Studies. Oh, he got the “separation of powers” part of the lesson. He likes that part. But the “checks and balances” part — not so much. Bush’s “unitary executive” doctrine says that he can ignore the other two branches of government whenever he likes, because any attempt to oversee or regulate what Bush wants to do is an encroachment on his powers.

What is the “unitary executive” doctrine? Jennifer Van Bergen wrote for FindLaw,

The unitary executive doctrine arises out of a theory called “departmentalism,” or “coordinate construction.” According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach “holds that all three branches of the federal government have the power and duty to interpret the Constitution.” According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

As a practical matter, since the executive branch is the one that executes and enforces law, this doctrine says the President can override whatever Congress and the Courts might think and put his own revision of law into effect. Van Bergen continues,

The coordinate construction theory counters the long-standing notion of “judicial supremacy,” articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: “It is emphatically the province and duty of the judicial department to say what the law is.”

Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the “Take Care clause” to preserve, protect, and defend the Constitution and to “take care” that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush’s recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution — even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush’s oath of office, as well.

After all, can it be possible that that oath means that the President must uphold the Constitution only as he construes it – and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn’t like – even though they were validly passed by Congress and signed into law by him?

Also at FindLaw, John Dean wrote in “Vice President Cheney and The Fight Over ‘Inherent’ Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11,”

[Attorney General Alberto] Gonzales’ position is that the President can make his own rules, notwithstanding the existence of a federal statute – the Foreign Intelligence Surveillance Act (FISA) – that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies “the equilibrium of our constitutional system” to use Chairman Specter’s words – treating Congress’ clear word on the matter, as if had never been spoken at all.

Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime.

In effect, Bush thinks he’s above the law.

Equally illogical is Vice President Dick Cheney’s position — and if anyone does not believe that Cheney is not behind this ruckus, they do not know Cheney or his history. Let me start by describing his give-no-quarter stance.

After the Attorney General’s testimony concluded, and given the doubts expressed about it by both Republicans and Democrats on the Senate Judiciary Committee, PBS newsman Jim Lehrer asked Cheney if President Bush would cooperate with Congress to “settle some of the legal disputes about the NSA surveillance program?” Cheney responded with a polite, hell no. (Incidentally, this was Cheney’s first interview with other than a conservative news person.) “We believe, Jim, that we have all the legal authority we need,” Cheney said. “[The President] indicated the other day he’s willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest.”

The President will listen to ideas and suggestions from the Congress, but he will not follow a law it has written (and a prior President has signed into law) on the subject? This is not exactly a logical stance.

No, but it is setting us up for a nice constitutional crisis.

Joyce Appleby and Gary Hart write,

Relying on legal opinions from Attorney General Alberto R. Gonzales and Professor John Yoo, then working in the White House, Bush has insisted that there can be no limits to the power of the commander-in-chief in time of war. More recently the president has claimed that laws relating to domestic spying and the torture of detainees do not apply to him. His interpretation has produced a devilish conundrum.

President Bush has given Commander-in-Chief Bush unlimited wartime authority. But the “war on terror” is more a metaphor than a fact. Terrorism is a method, not an ideology; terrorists are criminals, not warriors. No peace treaty can possibly bring an end to the fight against far-flung terrorists. The emergency powers of the president during this “war” can now extend indefinitely, at the pleasure of the president and at great threat to the liberties and rights guaranteed us under the Constitution.

“We now confront a constitutional crisis,” say Appleby and Hart, who bring up some opinions offered by James Madison in the Federalist Papers to explain why this is not how it’s supposed to work. And, frankly, you don’t have to be a lawyer or constitutional scholar to see this is true.

Much has been made of the fact that Cheney et al. want to “restore” presidential power that Congress stripped away after Watergate. This bit of history leaves out the fact that by Nixon’s time presidential power had expanded to an unprecedented degree. It’s not as if Congress took powers away that had been assumed by all the other presidents before Nixon. Indeed, it was a common belief among Whigs that the President should do little more than execute the will of Congress. At various times — the latter part of the Andrew Johnson administration comes to mind — Congress pretty much ran everything, and the President was little more than a figurehead who was cleaned up and trotted out for ceremonial purposes. I’m not saying that was ideal; I’m just saying that’s how it was at times. What Cheney wants to restore is not some Golden Age of Constitutional Originalism; he just wants to restore the Golden Age of Nixon.

But what is disheartening — not surprising, but disheartening — is the degree to which allegedly “libertarian” conservatives either defend the “unitary executive” doctrine or swat it away as some niggling detail only important to liberals. Glenn Greenwald wrote about this here and elsewhere.

… many Bush defenders are now arguing, as they must, that a “wartime” President’s power is so vast that it even includes this law-breaking power.

But the same individuals peddling this theory are simultaneously objecting quite vigorously to the notion that they are bestowing George Bush with the powers of a King. Bill Kristol and Gary Stevenson, for instance, called such claims “foolish and irresponsible” in the very same Washington Post Op-Ed where they argued that Bush need not “follow the strictures of” (i.e., obey) the law, and the President himself angrily denied that he is laying claim to a “dictatorial position” in the very same Press Conference where he proudly insisted on the right to eavesdrop on Americans without a warrant even though FISA makes it a crime to do so.

Bush supporters argue that the unitary executive doctrine does not amount to giving Bush dictatorial power, but they’ve yet to articulate where the limits are. Instead, they wave the flaming WTC tower and insist Bush must have these powers to protect us from terrorists.

Susie Madrak wrote today,

People have this Saturday-matinee picture in their heads of what a coup looks like. It involves black-and-white footage of modern-day Nazis, and tanks in the street. They believe those who destroy our democracy will telegraph their intentions in such a way that any action movie fan will easily identify the bad guys.

It never occurs to them the bad guys won’t sell themselves as such, because we are a nation largely immune to political nuance. And that is why we are watching our great democratic experiment being flushed down the bowl.

God help us.

Along these lines — go read one of the all-time great anti-Bush rants. Jane Smiley says it all.

14 thoughts on “The Unitary Executive, Part II: What It Is and Why It’s Bad

  1. on one thread I saw that Gingrich is saying the Dem slogan should be ” Had Enough Yet?”. Now if Republicans are saying this ,I say why did you put up the money to install this crowd to begin with? Why does the whole country have to dragged under the train just so another Dem can come clean up your mess , the one you created with your Big Ideas Newt? It is bad enough to be where we are with the constitution cutup and stuck on a nail in the john for ‘paper’, without the very people who defended this entire lice ridden crowd and enabled them and funded them, to sit now and say to us- why don’t you clean up our mess? Yea I’ve had it with Republicans every single last enabling one.

  2. There is a simple solution to this: elect a democratic president. I can guarantee, that if a democrat is elected president, the GOP will run away from this unitary executive nonsense at the speed of light.

  3. I think what we need to do is have it determined that we are NOT at war. Thus, Bush is not a wartime President. I believe the terrrorist/al qaeda problem could be resolved in a more efficient and effective manner without all the emotion and hysterics the Republicans have employed. A really difficult problem requires cool heads and smart thinking–something we aren’t getting from the present power mongers. Most particularly the missing element is smart thinking– or perhaps thinking in general . . . So far, everything Bush has done has played right into the hands of the terrrorists. Oh, what fools these right wingers be! And, playing into the hands of the enemy is just a bit unpatriotic as far as I am concerned.

  4. Great post, Maha…. and Jane Smiley’s rant was great also.

    I must have been sleeping in civics/government class. I always understood that the original army was composed of militias from the states and that the Commander-in -Chief served only as a figure head to unite the militias under one command. I never thought the Commander-in-Chief was capable of becoming the supreme being and arbiter of law and liberty. We live and learn.

  5. I agree with Bonnie in #3 above. I didn’t realize that the Authorization of Use of Military Force was a formal declaration of war. As far as I can tell, Congress has not yet formally declared war, but I suppose the unitary President can do that too, even if Congress suggests otherwise.

  6. Several thoughts on comment 3:

    I agree with many of the points you make.

    Bush and the entire right wing would never agree to this, both from a political standpoint and from an emotional/philosophical one. They’re entirely fear based, and they both need and see enemies everywhere. This alone shuts off their ability to reason and be open to the points you raise.

    Obviously, Bush et al. use this to stay in power. Otherwise, jailtime or a War Crimes Tribunal in The Hague is a real possibliity (we should be pushing for the latter, IMO).

    Your central idea is complicated by the notion that while we are not fighting a war in the traditional sense, terrorists are far more than mere criminals. To someone watching television, it sure looks like war.

    Technology has shifted the balance of power away from nation-states to individuals. The seriousness of the threat posed by these individuals is due to their proximity to the oil, our country’s lifeblood. Had the al Qaeda attack on the Saudi oil field (a month ago?) been successful, it would have roiled the entire global economy, and caused huge problems at home – which was their intention – not bad for a handful of criminals.

    The other point I want to make is that it’s my belief that Bush and company actually want all this destruction, both abroad and at home. Or at the very least they don’t care, it’s a completely acceptable price to pay. Their fortunes are intact, and they will benefit as the middle class in this country is ruined. Bush and al Qaeda need each other. And so sane ideas like yours don’t even touch the horrible pathology driving these people, IMO. Oceania has always been at war with Eurasia.

    If you’ll allow me some phantasmagorica, one of my acquaintances is a famous psychic, and a lifelong Republican. His vision of Bush is of someone dipping their hand into a large bowl of blood and bodies, and laughing. That’s how I see it, too.

    Finally, should sane people manage to wrest control of our country, I’m certain that ideas like yours will be the ones that are ultimately followed to resolve the situation.

  7. Thanks for this post. Many who previously supported George Bush may now secretly and desperately want to see some strong Democrats emerge and lead this country back to sanity.

    A couple of days ago, I got into a rather heated exchange with a Bush supporter who said the most curious thing, “Why are the Democrats so quiet….if they think Bush is ruining the country, they should stand up and shout their disapproval!” Only later did it occur to me that this curious statement was delivered in a tone that likely reflected a tacit hope that someone could successfully counter Bush.

    Jane Smiley’s piece was soooo good.

  8. The findlaw article is a good one- you notice the ‘scholars’ mentioned are all Nixonian OLC folks- yes this an old rationalization for presidential power from the original nixon crowd. All our problems ( and the personnel)seem to date from that era. No surprise huh. I really feel we should not debate their points- it is just more smoke and mirrors from a crowd that will do anything to keep grabbing power at our expense while we are over in the corner picking apart their drivel( see Glenn Greenwald and how the administration answered Dem questions about NSA spying and how they answered Repub questions- proof that they are so deep into rationalizing there is no meaningful discussion with them).

  9. Maha, thanks for a great post. The media are reporting the events as they unfold but they are reluctant to put them all together so that we can see the big, ugly picture.
    The Authorization to Use Military Force was not a declaration of war, but the president would still be bound by the laws if we were at war. The FISA act contains explicit provisions concerning a state of war. If the president thought these provisions were too confining, he should have gone to the Congress and asked them to change the law. Instead he chose to ignore it.
    I think the Congress has not been fulfilling its responsibility with regard to checks and balances. They still have the power of the purse, and can refuse to fund what they don’t like. They can hold up bills that the president wants, such as the Patriot Act, until they get an explicit promise that he will obey them as written. If the Democrats get control of either house, they can hold investigations and hearings. And if they get control of both houses, they can send him back to Crawford, TX.

  10. There’s too much money at stake and too many GOP political donors are getting rich for Bush to jeopardize everything by changing the vocabulary now by calling the “war on terror” the “police action on terror”.

  11. Dubya obviously issued a signing statement after taking the oath of office. Access to the document is on a need to know basis.

    And since the 4th Amendment is on sabbatical, maybe the Shrub plans on voiding the XXII. All this pesky pre 9/11 thinking!

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