On the Unitary Executive

For most Americans the term "unitary executive"has little meaning. The application of that formerly obscure school of political thought, however, has implications for all of us, and none of them good.

The foundation of this theory rests upon the "Vesting clause" of the Constitution which states, "The executive Power shall be vested in a President of the United States of America.", as well as the "Take care" clause. This latter states, "The President shall take care that the laws be faithfully executed..."

The argument is, in essence, that all executive power lies in the hands of the presidency, and any attempt by either the legislative or judicial branches to exercise oversight or place limits on the power of the executive are unconstitutional.

This theory has its roots as far back as the founding of the country, but it has never been as aggressively pursued as it has by the current Bush administration, which sees the theory as the basis for nearly unlimited executive power. And while this theory may have been examined by the founders it was discarded in favor of the separation of powers.

This separation of powers was deliberate, in that the Founders knew all too well what happened when all power was concentrated in one set of hands, having only just thrown off the yoke of such a ruler. This separation of powers was not simply meant to be symbolic either as it is a cornerstone of the Republic. James Madison wrote in The Federalist Papers, No. 47, Para. 4,

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

This is a clear and unequivocal contradiction of any claims the Bush administration and its supporters might make regarding the intentions of the Founders towards the accumulation of power in any one branch of government.

It is also worth noting that this aggressive assertion of unitary executive theory flies in the face of traditional conservative suspicion towards a strong executive. Due to the efforts of Dick Cheney, David Addington, John Yoo, and others, unitary executive theory has become central to conservative ideology.

This assertion of unchecked presidential power by the Bush administration can be seen in numerous instances. In the case of Jose Padilla, a US citizen, the administration usurped habeas corpus by taking Padilla into custody on US soil and holding him without charge or access to counsel for nearly three years. In ordering the NSA to undertake a program of eavesdropping on US citizens absent a warrant, in direct violation of federal law, the Bush administration effectively held itself to be above the law. In seeking legal sanction for torture, in direct conflict with US and international law and treaty obligations, the Administration asserted authority to act unilaterally and without congressional oversight in any manner it sees fit in the name of "national security".

Past presidents have attempted to assert a more energetic presidency, some with success, some without. Thomas Jefferson successfully expanded the authority of the President to appoint judges in the case of Marbury v. Madison. Abraham Lincoln suspended habeas corpus. Theodore Roosevelt expanded presidential powers, but only to the extent which hose powers did not conflict with prohibitions enumerated under the Constitution or by federal statute. Franklin Roosevelt ordered the internment of more than 100,000 Japanese Americans. Harry Trueman attempted to prevent a strike during the Korean War with Executive Order 10430. And, of course, the Nixon administration and its program of domestic surveillance and burglaries.

The key difference between past successes and failures, to expand presidential authority, and the Bush administrations attempts to do so, lies in the fact that these attempts were open to legislative and judicial scrutiny. They could be upheld or overturned based upon the review of these assertions of presidential power under the law. The Bush administration vigorously, some would say aggressively, obstructs any attempt at legislative or judicial review of its assertion of executive power. Such actions make it abundantly clear that the Bush administration sees the doctrine of the "unitary executive" as providing all the justification it needs to ignore, overrule, or bypass entirely, either Congress or the courts. This based solely on the interpretation, by Bush and other members of his administration, of the Constitution...Even when those interpretations usurp federal law and treaty obligations and even those bills which he signed into law.

In 1939, a young German constitutional lawyer explained the power claimed by Hitler as "Leader", in the following manner:

The authority of the Leader is total and all-embracing: within it all resources available to the body politic merge; it covers every facet of the life of the people; it embraces all members of the German community pledged to loyalty and obedience to the leader. The Leaders authority is subject to no checks or controls; it is circumscribed by no private preserves of jealously guarded individual rights; it is free and independent, overriding and unfettered.(emphasis mine) - Richard J. Evans, The Third Reich In Power, pg 44, Penguin Books, 2005, ISBN 0-14-303790-0

There is Striking similarity between this assertion of executive power in pre-WWII Germany and the assertions of executive power made by the Bush administration and its supporters. In both cases, the executive can disregard the legislative and judicial processes in pursuit of its goals; the rule of law becomes an irrelevancy.

Writing in Common Sense, Thomas Paine stated that,

"...in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

In asserting the unfettered power of a "unitary executive", President Bush and his administration, are asserting that they, not Congress nor the judiciary, are the ultimate arbiters of what is and is not lawful. In doing so, they usurp the rule of law and the law is no longer king.

Sources:

Unitary Executive Theory

The Hidden Power

The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?

How Much Authority Does the President Possess When He Is Acting as "Commander In Chief"?

Federalist No. 47

Common Sense