All presidents push for an expansive interpretation of their own constitutional powers vis-a-vis the other branches, of course. But the Bush Administration appears determined, beyond all precedent, to push that just as far as it will go, citing a “unitary executive” theory of presidential power. From http://en.wikipedia.org/wiki/Unitary_Executive:
A recent paper by political science professor Christopher Kelley – http://www.cageprisoners.com/downloads/kelleypaper.pdf (PDF file) – traces the history of the “unitary executive” theory back to the Reagan Administration, but points out that it has remained very obscure up to now and that Bush is the first to specifically refer to it (95 times!) in support of his actions.
The “unitary executive” also appears to underly the Administration’s position that courts should give presidential “signing statements” on legislation interpretive weight, alongside Congressional committee reports, as part of the statute’s “legislative history.” See this thread: http://boards.straightdope.com/sdmb/showthread.php?t=353667 It also might relate to the theory, recently floated by William Kristol and Gary Schnitt in The Weekly Standard, that the Framers intended the president to wield “extralegal but constitutional powers” (mainly in the national-security sphere). See this thread: http://boards.straightdope.com/sdmb/showthread.php?t=350684
Obviously we have a “unitary executive” system in that the president, as opposed to a collegial Cabinet, is clearly the sole executive decision-maker. But just how far do his constitutional powers extend?
To my liberal eyes, the president saying “The executive branch shall construe as advisory the provisions of the Act” is entirely contrary to the oath of office to "faithfully execute the laws of the United States. " Most other liberals would say the same, I’d wager. But where are conservatives in this? Surely executive usurpation is not a conservative doctrine? All right, Bricker, step up to plate here. Inquiring liberal minds want to know.
Okay, at the risk of turning into a one-man band, here is what I was getting at: Section 3 of Article 2 of the Constitution says: “he shall take Care that the Laws be faithfully executed.”
What he is saying is “I should be King.”, the irony of someone receiving the position through elected office, and then putting themselves up as a Monarch is pretty rich.
I think the theory is accurate within well-defined limits. The three branches of Government are set up as checks and balances against each other. They each have clearly defined roles.
As far as Congress or the Supreme Court attempting to pass laws or legislation that attempts to circumvent the executive branch’s Constitutional powers the President can feel free to ignore them since the athority he derives from the Constitution is higher.
It works the other way, as well. The President cannot dissolve Congress or impede upon the powers of the other Branches.
Of course, there will always be give and take and where the lines are drawn will be subject to dispute and change. That’s why we have three branches. The majority rules and that’s the way the checks and balances are supposed to work.
What constitutional powers are you referring to here? Can you cite the relevant Constitutional text? And I wasn’t aware that the Supreme Court passed laws. Maybe you can cite me the text for that as well.
While the phrase “unitary executive” is new to me (I’ve got some reading to do), the assertion cited by BrainGlutton is consistent with the Constitution and has been used in the past. The president is asserting a constitutional power under Article II, Section 2 to conduct foreign relations, specifically to negotiate. When Congress passes a law that, in part, places an unconstitutional limitation of a presidential power enumerated in the constitution, the president issues a statement like this to state his intention to exercise his power in accordance with the constitution, not in accordance with the law in question. It is a presidential determination of the constitutionality of a law as it applies to the presidency. I believe that this has happened lots of times over many years. Here’s the relevant text from the constitution:
It doesn’t say that he has the power to make treaties subject to directions issued by congress. Of course, the check on this power is the adice and consent aspect. He can negotiate freely, but the senate still has to approve it.
I would say that the Constitutional power to make treaties is not the same as the “constitutional authorit[y] to conduct the Nation’s foreign affairs,” as the White House has alleged. Also, note that the White House has invoked the unitary executive theory 95 times, and most of those instances have nothing to do with national security or foreign affairs.
It’s ironic to me that the same party and people that complain about judicial activism have no complaint about a form of executive activism that relies on stretching the meaning of the Constitution as much or possibly more than judicial activists are claimed to do.
I’m pretty sure that the clause I cited along with the general executive power have long been construed to mean that the president has the power to conduct foreign policy. In, addition, I did not intend to imply that the foreign policy area was the only one in which the president might properly declare a portion of a law to be “construed as advisory.” The PDF that you linked to mentions others. I agree with you about “executive activism” coming from a president who decries judicial activism. I don’t think Bush is doing that if he’s attempting to insert a disclamer against what he views as legislative encroachment on his powers; I do thi nk he’s doing that if he tries to otherwise add to or subtract from a law for other purposes. I don’t think his efforts in the latter situatiion will have much effect.
Napoleon took the crown out of the Pope’s hands and put it on his own head; Dubya got his crown directly from Jesus. In the name of the Father, the Son, and Unitary Executive.
The White House would probably agree with you. The “constitutional authorit[y] to conduct the Nation’s foreign affairs” is not the same as the treaty power. The constitutional authority to conduct the Nation’s foreign affairs is part of the “executive Power.”
Article II, section 1 says, “The executive Power shall be vested in a President of the United States of America.” The “executive Power” was understood by the Framers to refer to the power to conduct foreign affairs. As stated by Thomas Jefferson in 1790 (emphasis added):
Brainglutton, it appears that you’ve either got a typo in your quote from Wikipedia, or Wikipedia has changed their entry on the unified executive theory. You said that Wikipedia states:
Wikipedia actually says (emphasis added):
This word is important because it encapsulates the entire Bush admin’s argument on the law you’ve quoted. (Note that the Wikipedia entry also leaves out the implication that the Bush admin believes they can ignore what the Judiciary says a law means.)
The President doesn’t have to follow the Legislature’s directions on how the President should conduct foreign policy. That’s because the Constitution granted this power to the President, and not the Legislature. Just as the Courts can’t pass their own laws because that would infringe on the powers given to the Legislature, the Legislature can’t direct the President on how to conduct foreign relations because that would infringe on a power given to the Executive.
Your Wikipedia cite also provides cites to two other articles tracing the unitary executive theory to well before Reagan. Specifically, the articles detail instances of the unitary executive theory from 1889-1945, and 1945-2001. To quote the abstract from the former article:
Accordingly, there seems to be some historical evidence of the theory since long, long before Reagan and Bush.
Your cite goes to a google search for unitary executive. Could you be more specific?
Once again, your Wikipedai cite either appears to have changed, or you’ve left something relevant out of your quote. The sentence after your quote says:
It’s not just the Bush administration that’s utilized “signing statements” to guide judicial interpretation. That practice has a long history, which has apparently been accepted by the judiciary.
I can tell you only that, in the OP, I cut-and-pasted the text verbatim as it appeared on that day. Of course, this is the Wikipedia, which anyone can edit. So, while it’s a pretty reliable source on, say, scientific questions, any article on any politically controversial topic is liable to change from day to day.
In fact, in the current climate I would expect a “The neutrality of this article is disputed” disclaimer above the article, but apparently it hasn’t reached that point yet.
It has not been accepted by the judiciary. One Supreme Court decision in 1946 made reference to a signing statement of FDR as an element of the “legislative history” of the statute under review, although that does not seem to have been a dispositive factor; and the doctrine has lain dormant since then. Which might change, if Alito, who pushed the idea when he worked for the Reagan Administration, gets confirmed to the SC. See discussion in this thread: http://boards.straightdope.com/sdmb/showthread.php?t=353667
This is not true. See, e.g., United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) (“though in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent, . . . President Reagan’s views are significant here because the Executive Branch participated in the negotiation of the compromise legislation.”); Berry v. Dep’t of Justice, 733 F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson’s signing statement on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman’s description in signing statement of proper legal standard to be used in Portal-to-Portal Act).
Do you feel then that the President has unlimited power to torture others? That his ability to have people tortured is a Constitutionally protected executive privilege? Do you feel that this viewpoint is consistent with conservative philosophy generally?
Could the President, in your view, order individual Congressmen to be tortured?
Are you saying that any President is free to interpret the Constitution as she or he believes? If that is not what you are saying, please explain the difference.
Does anyone here believe that Bush resurrected the concept of the Unitary President on his own? If not, who is likely to have encouraged his thinking in this direction? Did Bush the Elder and Clinton utilize the concept?
