The Bush Administration and the "unitary executive" theory

[Evil_Captor]

I am genuinely puzzled as to how a President who is not constrained by the law is different from a dictator. What’s the difference, in real terms?

[Age_Quod_Agis]

@Zoe

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?

If you check out my earlier citation (derived from Brainglutton’s original citation to Wikipedia), you’ll see that Clinton, Bush, and numerous other Presidents have apparently relied on an understanding akin to the unitary executive theory. Specifically, the two articles I linked discuss instances in which Presidents between 1889 and 2001 applied the theories underlying the unitary executive theory.

Bush isn’t the first to use the theory, and he won’t be the last. One of its cheif proponents was FDR, although the articles I linked earlier trace it back at least as far as Benjamin Harrison. Once again quoting from the abstract of the law review article The Unitary Executive During the Third Half-Century, 1889-1945 (emphasis added):

This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1889 and 1945, beginning with the Administration of Benjamin Harrison, ending with the Administration of Franklin Delano Roosevelt, and paying particular attention to FDR’s failed attempt to reorganized the executive branch. *The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. * In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.

And quoting from the abstract of the law review article The Unitary Executive in the Modern Era, 1945-2004 (emphasis added):

This Article is part of a larger project offering a comprehensive chronicle of the battles between the president and Congress over control of the administration of federal law. It reviews the period between 1945 and 2004, paying particular attention to the Clinton impeachment and the lapse of the independent-counsel statute. *The record shows that presidents from Harry S. Truman through George W. Bush consistently defended the unitariness of the executive branch, vitiating any claim that a custom of allowing congressional incursions on the unitary executive has emerged. * In fact, the episodes discussed herein eloquently illustrate both the legal and the normative arguments supporting the unitary executive.

@Zoe

Are you saying that any President is free to interpret the Constitution as she or he believes?

Yes, the President is free to interpret the Constitution as he or she believes, within the bounds of the Constitution (obviously, the doctrine of judicial review sets a limit on the President’s authority to interpret the Constitution, since the judiciary is the final arbiter of the Constitution). The President is an equal branch of the government, and therefore free to act within the bounds of what he or she feels the Constitution requires (at least until the matter is determined by the courts).

[Age_Quod_Agis]

@Evil Captor

I am genuinely puzzled as to how a President who is not constrained by the law is different from a dictator. What’s the difference, in real terms?

The President is constrained by the law. The unitary executive theory does not say otherwise.

[Evil_Captor]

@Age Quod Agis

The President is constrained by the law. The unitary executive theory does not say otherwise.

As I understand it, in the case of torture, the Prez has written a note saying, “I’m not gonna follow this law cause it bugs me as Commander in Chief, and neither are any of my CinC minions.” (or words to that effect). And he did it under the unitary exec theory. This seems to be EXACTLY a case of the President not being constrained by that particular law.

[Age_Quod_Agis]

That’s not my understanding. Can you be any more definitive with regard to the note? Maybe a cite to the note or a news article about it?

[BrainGlutton]

@Age Quod Agis

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).

Interesting . . . Perhaps you could post this information in the other thread?

[John_Mace]

@Age Quod Agis

That’s not my understanding. Can you be any more definitive with regard to the note? Maybe a cite to the note or a news article about it?

Here’s the signing statement and this is the relevant section on torture:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

I’d be interested in hearing one of our resident lawyers tell us what this means-- it’s not obvious to the untrained reader (like myself).

[Evil_Captor]

@Age Quod Agis

That’s not my understanding. Can you be any more definitive with regard to the note? Maybe a cite to the note or a news article about it?

Sure.

[BrainGlutton]

@John Mace

Here’s the signing statement and this is the relevant section on torture:
I’d be interested in hearing one of our resident lawyers tell us what this means-- it’s not obvious to the untrained reader (like myself).

At first glance, without looking up all the statutes and cases to which it refers, I would say it means the Administration takes the position that the McCain amendment does not give “enemy combatant” detainees any right of access to the courts, whether to have their status reviewed or to sue the government for torturing them.

[Gfactor]

@Age Quod Agis

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.”)

Not to put words into BrainGlutton’s mouth, but I think he meant that the use of signing statements by the judiciary has not been approved by the Supreme Court. As I pointed out in this thread. Bush’s use of the signing statement as legsilative history is especially disingenous because the judges (Scalia and Thomas) that he says represent his judicial philosophy eschew legislative history as an indicator of legislative intent.

[BrainGlutton]

@Gfactor

Bush’s use of the signing statement as legsilative history is especially disingenous because the judges (Scalia and Thomas) that he says represent his judicial philosophy eschew legislative history as an indicator of legislative intent.

Alito, OTOH – for all that he has been nicknamed “Scalito,” an intellectual clone of Scalia – might well have a very different view of “legislative history.” Considering that it was he who first started pushing the idea of the presidential “signing statement” as an element of it, back when he worked for the Reagan Administration.

[mswas]

@BrainGlutton

What? Worked for Napoleon, didn’t it?

Well, now that you mention it, no, no it didn’t.

Erek

[BrainGlutton]

@mswas

Well, now that you mention it, no, no it didn’t.

Erek

Come on! When you consider where he started, ten years as emperor was a pretty good run!

[John_Mace]

@BrainGlutton

Alito, OTOH – for all that he has been nicknamed “Scalito,” an intellectual clone of Scalia – might well have a very different view of “legislative history.” Considering that it was he who first started pushing the idea of the presidential “signing statement” as an element of it, back when he worked for the Reagan Administration.

Huh? Scalia is noted for his unwillingness to look at “legislative history”. My guess is the nickname of “Scalito” was given him by people who don’t know what they’re talking about.

BTW, did you see the article about this in last week’s NYT magazine? (Not yesterday, but a week ago yesterday). Do a little searching on the web if you haven’t. I think you’ll find it very interesting.

[BrainGlutton]

@John Mace

Huh? Scalia is noted for his unwillingness to look at “legislative history”.

That was my point.

@John Mace

My guess is the nickname of “Scalito” was given him by people who don’t know what they’re talking about.

Well, Alito has that nickname based on a reputation for agreeing with Scalia about most things. It need not be all-inclusive to be appropriate.

[BrainGlutton]

@BrainGlutton

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.

Update: Since I posted the OP, the Wikipedia article on “Unitary Executive Theory” (http://en.wikipedia.org/wiki/Unitary_executive), originally just 4-5 paragraphs, has grown to several times that length and now is divided into multiple subsections with several “see also” links at the end and many more cross-referential links embedded in the test. Topical interest makes the treatment grow.

[SteveG1]

I am completely against any notion of a “unitary executive”. Nobody is above the law, inclujding the President. It is not his place to make law, that belongs to Congress. It is not his place to decide what laws are valid or constitutional or interpret them, that belongs to the Supreme Court. His job is to execute, enforce, and act on the law. The powers of the President were deliberately and purposely limited in the Constitution.