January 10, 2006

NEVER THE TWAIN SHALL MEET:

Schumer questions nominee's theory on executive role (Charlie Savage, January 10, 2006, Boston Globe)

Adherents of the [unitary executive] theory say that the Constitution prevents Congress from passing a law restricting the president's power over executive branch operations. And, they say, any president who refuses to obey such a statute is not really breaking the law.

As a lawyer during the Reagan administration, Alito worked for a Justice Department office that helped developed the modern form of the theory. Alito and colleagues were seeking ways to increase the power of the president.

In a speech in November 2000 before the conservative Federalist Society, Alito said he believes that the Constitution gives the president ''not just some executive power, but the executive power -- the whole thing."

''We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president," Alito said, referring to his days in the Reagan administration. ''And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."

Alito did not specify how he would apply the theory. But other adherents have invoked it to argue for giving the president increased powers, including authority to withhold information from Congress; to take secret actions without telling Congress; and to take control of independent agencies.

When President Bush took office, many adherents of the ''unitary executive theory" joined his administration.

During Bush's first term, according to a study by a Portland State University professor in Oregon, Phillip J. Cooper, Bush objected to 82 provisions of new laws on grounds that they violated his power, in Bush's words, to ''supervise the unitary executive."

The mechanism that Bush used to make those 82 complaints were presidential signing statements, official documents in which a president lays out an interpretation of a new law.

As a Reagan administration lawyer, Alito helped expand the use of signing statements to ensure, in his words, that ''the president will get in the last word on questions of interpretation."

Bush's interpretations of torture and surveillance laws have come under dispute in several recent cases.

Two weeks ago, he issued a signing statement invoking his executive powers to reserve the right to waive a law governing torture.


It's hardly surprising that members of Congress would wish to aggrandize to themselves powers that the Constitution grants to the executive instead.

Posted by Orrin Judd at January 10, 2006 10:35 AM
Comments

Article. II.

Section. 1.

The executive Power shall be vested in a President of the United States of America.

Seems pretty clear to me.

Posted by: David Cohen at January 10, 2006 10:51 AM

David,

Only if you believe that the document means what it says. There are,of course, other schools of thought as far as that goes.

Posted by: Tom C. Stamford, Ct., at January 10, 2006 11:00 AM

Of course if a Dem was president . . .

Posted by: Jim in Chicago at January 10, 2006 11:26 AM

I think Schumer is barking up the wrong tree. It seems to me that he is missing the real danger to Congress in the unitary theory.

I think that the theory calls into question the entire independent agency structure (FCC etc.) The Supreme Court upheld the New Deal legislation that put limits on presidential removal authority. But since an agency is exercising executive authority, how can a limit be valid? Shouldn't the President be able to remove his non-Article 3 appointments at will?

Posted by: Bob at January 10, 2006 11:53 AM

Bob: Absolutely. The constitutional placement of all executive power in the President is completely incompatible with the so-called "independent" agencies. Of course, the administrative agencies are also incompatible with the lodging of all legislative power in the Congress. It is also clear that anything any agency can do can be done by the President alone.

Posted by: David Cohen at January 10, 2006 12:04 PM

There are only three branches of government and "Bureaucratic" is not one of them.

Posted by: Rick T. at January 10, 2006 1:01 PM

I think the Democrat Senator theory is that the Supreme Court should wack the President across the shins every couple of weeks and stay the heck out their way, they can do what they want.

Posted by: Robert Schwartz at January 11, 2006 2:30 AM
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