What Are "Unitary Powers" That The Executive Branch of Government Refers To?
I have been following the Senate hearings on the confirmation of Judge Alito, as have many Americans. I am sure that many Americans, like myself, have wondered, or openly asked, because of the number of times that the phrase popped up; just what are these "Unitary Powers" that they mention? Besides that phrase, what are "signing statements" and doesn't every President say a few words before a bill is signed into law? I decided, before I wrote anything positive or negative about the confirmation of Judge Samuel Alito, to check further into these two terms. What I found out was very disturbing, if not frightening. I would also ask you to read an article that I wrote just yesterday on "Liberalpro" . (http://liberalpro.blogspot.com ) entitled "Time is Getting Short Mr. Bush" and at that time I knew less than what I know now about this "Unitary Executive Power" that I refered to in the article. I called it a "theory" in yesterday's article. How naive I was just one day ago.
I am going to quote an article from FindLaw's commentary:
What Does the Administration Mean When It Refers to the "Unitary Executive"?
Dr. Kelley notes that the unitary executive doctrine arose as the result of the twin circumstances of Vietnam and Watergate. Kelley asserts that "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," which resulted in a congressional assault on presidential prerogatives.
For example, consider the Foreign Intelligence Surveillance Act (FISA) which Bush evaded when authorizing the NSA to tap without warrants -- even those issued by the FISA court. FISA was enacted after the fall of Nixon with the precise intention of curbing unchecked executive branch surveillance. (Indeed, Nixon's improper use of domestic surveillance was included in Article 2 paragraph (2) of the impeachment articles against him.)
According to Kelley, these congressional limits on the presidency, in turn, led "some very creative people" in the White House and the Department of Justice's Office of Legal Counsel (OLC) to fight back, in an attempt to foil or blunt these limits. In their view, these laws were legislative attempts to strip the president of his rightful powers. Prominent among those in the movement to preserve presidential power and champion the unitary executive doctrine were the founding members of the Federalist Society, nearly all of whom worked in the Nixon, Ford, and Reagan White Houses.
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.
(copyright 1/9/2006-Findlaw)
Now as I read that, it scares me to see that the executive branch of the Federal governmnent can (and must) interpet laws, equally, as much as the courts. Now, what would our Conservitive friends in Congress think if President William Jefferson Clinton decided that, yes...this is a premise that I can adopt in my Presidency. What would be the effect of that in the Republican Party? Do you believe that they would stand with President Clinton as he waved his hand and dismissed Special Prosecutor Starr because it interferred with his prosecution of the war in Kosovo and Bosnia? The hearings aldo mentioned the "Signing Statements" that the administration used in conjuction with the "Unitary Executive" doctrine. What are these all about, and why are they so important? Again I quote from
FindLaw's:
President Bush's Aggressive Use of Presidential Signing Statements
Bush has used presidential "signing statements" - statements issued by the President upon signing a bill into law -- to expand his power. Each of his signing statements says that he will interpret the law in question "in a manner consistent with his constitutional authority to supervise the unitary executive branch."
Presidential signing statements have gotten very little media attention. They are, however, highly important documents that define how the President interprets the laws he signs. Presidents use such statements to protects the prerogative of their office and ensure control over the executive branch functions.
Presidents also -- since Reagan -- have used such statements to create a kind of alternative legislative history. Attorney General Ed Meese explained in 1986 that:
To make sure that the President's own understanding of what's in a bill is the same . . . is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.
The alternative legislative history would, according to Dr. Christopher S. Kelley, professor of political science at the Miami University at Oxford, Ohio, "contain certain policy or principles that the administration had lost in its negotiations" with Congress.
The Supreme Court has paid close attention to presidential signing statements. Indeed, in two important decisions -- the Chadha and Bowsher decisions - the Court relied in part on president signing statements in interpreting laws. Other federal courts, sources show, have taken note of them too.
President Bush has used presidential signing statements more than any previous president. From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.
In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times. It is important, therefore, to understand what this doctrine means. (FindLaw copyright 1/9/2006)
When I read this, I can appreciate that the President of The United States of America, and The Liberal Party of America, are not looking at the Constitution of The United States of America, in the same way. I believe that this President, along with his inner circle, do not believe that the Constitution is really the law of the land. I believe that they feel that, because they operate the Executive Branch of government, that they, and they alone, have the power and the legal means to circumvent the Constitution in ways that they can justify by delaring that we are at war, and that they are somehow blessed with extraordinary powers to maintain the "security" of The United States. This line of thinking is wrong and unjustifiable. This kind of thinking is the same kind of thinking that the Presidident used to circumventThe McCain Anti-Tortue Bill when he used a signing statement that said:
"The executive branch shall construe Title X in Division A of the Act, relating to detainees, In a manner consistant 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."
So, in effect, The President, not only decides that he does not have to follow this law, but he presupposses that his will, and the will of Congress, are one in the same. This is also a view that is rejected in it's entirety by The Liberal Party of America.
We are indeed replaying history. The President and his minions are approaching (if they haven't already crossed) the Rubicon, and the Senate and The House of Representatives are, along with The Supreme Court, are the only thing stopping us from losing our Democracy. Thomas Paine said in Common Sense:
"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."
I believe that in the very core of my being. To think otherwise would make me less than an American. These are trying times. We have an enemy that wants to defeat the very thing that the executive branch is trying to take away from us. The rule of law, and our government that has existed for so long. The reason for that is because of the system of checks and balances that our founding fathers built into our Constitution. To let Osama Bin Laden or any other henchman of death, take away our freedom, so that we can defeat them, is a defeat in itself. We are a nation that can do both, fight the war against tyranny, while keeping and nourishing our democracy. To do it any other way, would be to turn our backs on the men that made this country what it is; a beacon of hope to the entire world. To do less would be treason, for even if we defeat our enemies, and lose our freedom in the process, we become something else, something that isn't American, something our Founding Fathers would be ashamed of. Even if we win this war and lose our freedom, we have lost. We can't let that happen, and if The Liberal Party of America has anything to say about it, we wont let that happen.