Friday, March 24, 2006

The Unitary Executive

For those of you who may not be familiar with the term, the "unitary executive" is a concept championed by members of both the Federalist Society, and the Nixon, Ford, and Reagan administrations. In short, the idea is that all executive authority in the government is centralized to the President, and the Executive branch has the authority, at its discretion, to bypass the checks and balances of the other two branches of government. Those who promote this theory also suggest that the Executive has the authority, indeed the duty, to interpret the laws and the Constitution, not to just execute and enforce them. The power to interpret laws is traditionally believed to be the exclusive right of the Judicial branch.

No President has been more active in exercising the doctrine of the unitary executive than George W. Bush. And his favorite weapon in his unitary war on the Constitution: the "signing statement." Signing statements have been used by Presidents since Monroe to offer their take, their interpretation, of the legislation that they sign into law. And these signing statements HAVE been considered by the courts in ruling on past cases involving the legislation that the President signed.

From President Monroe through President Clinton, the Executive branch had issued 332 such signing statements. President George W. Bush? He has used 435 of these statements in his first term alone! Now I know why he doesn't veto anything. He simply issues a signing statement that the law doesn't apply to him. Must be nice to be above the law.

Unfortunately, these signing statements have not gotten the media attention they deserve (surprise, surprise). There was a bit of a media stink at the time of the President signing the McCain law supposedly banning torture. Legal scholars suggested at the time that in effect, the President reserved the right to use torture when he deemed it necessary. That is not the only disturbing part of his signing statement. In the same section on the statement, Bush in effect strips detainees of the right to avail themselves of due process, and SPECIFICALLY DECLARES THAT THE FEDERAL COURTS HAVE NO JURISDICTION over matters related to the detainees. In effect, the President has now decided to dictate limitations on the other branches of the government. Here's the section:

"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."

This is scary stuff. And as I said, the media doesn't seem to be paying any attention to it. Fortunately, Sen. Patrick Leahy (D) VT. has been paying attention, and the Boston Globe did a story today on Bush's most recent signing statement, his interpretation of the "Patriot Act." Here's the story (you may have to register to read):

Boston Globe article.

In this most recent decree from King George, the prez has decided that he doesn't have to adhere to the oversight requirements of the law, and he doesn't need to inform Congress on how the powers of this law are being used by the administration. Here's his signing statement on the renewal of the "Patriot Act"

"Today, I have signed into law H.R. 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005," and then S. 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006." The bills will help us continue to fight terrorism effectively and to combat the use of the illegal drug methamphetamine that is ruining too many lives.

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient."

He sure likes the phrase "unitary executive branch". He should. His administration's "interpretation" of our Constitution would, taken to its extreme, allow for an all-powerful Executive branch with no Congressional oversight, no Judicial interpretation, and no checks whatsoever on the authority of the President. He cites the "limitations on the judicial power", yet recognizes no limit on his own.

Forget Iraq. Forget Plamegate. Forget Katrina. Forget the NSA spying program. This President MUST be impeached, if for no other reason than to insure the sanctity of our very form of government, and the preservation of the rule of law, the rights of the people, and the Constitution itself. Make no mistake folks. If this President's thirst for power continues to go unchecked, then government of the people, by the people, and for the people WILL perish from this earth.


At 10:49 AM, March 26, 2006, Anonymous nelg said...

Great Blog keep writing It'sa pleasure to read something from someone that tell's the truth instead the lies that come from the lap dogs of the right(i.e. The mainstream media) Keep telling the truth.

At 12:26 AM, March 27, 2006, Blogger Marlipern said...

Thanks. And please keep reading, and commenting, and questioning the status quo. If those of us who still have our senses keep shouting from the rooftops, perhaps the rest of America will wake up.

At 11:33 AM, March 27, 2006, Anonymous Anonymous said...

Keep the truth alive, but if Bush is impaeched it will be Cheney in charge. Big change eh.


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