Sunday, September 19, 2004

The Unitary Executive 

This past August 5, President Bush signed into law the “Department of Defense Appropriations Act” for 2005. In his statement that accompanied the bill, the President took issue with a section that required him to integrate foreign intelligence information in response to the recommendations made by the 9/11 committee. President Bush wrote that he would construe the section

… in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary

executive branch.

What is noteworthy about this statement is the use of the term, the unitary executive branch. Through 2003, the President has employed this particular term—the “unitary executive”—59 times. He has used it as parts of statements to bills he is signing into law, as parts of executive orders, and to respond to congressional resolutions that do not carry the force of law. President Bush is also the first president to cite this particular term. While the media and indeed most presidency scholars have overlooked its significance, I contend it is important that we understand what the President means by unitary executive and why it carries important political implications. The particular term unitary executive finds its origin in the legal team assembled in the Reagan and Bush I Justice Departments and White House Counsels Office. It draws largely upon the writing of Alexander Hamilton, who advocated in Federalist 70 for energy in the executive. The legal advisors to Presidents Reagan and Bush I pushed for a vigorous defense of presidential prerogatives, and upon leaving their public positions, they mostly took up residence in conservative law schools such as Pepperdine and Northwestern University, as well as in conservative think tanks such as the Heritage Foundation and associational organizations such as The Federalist Society. It is from these positions that many of these former presidential advisors have continued to write and advocate for a theory of raw and aggressive constitutionally-driven presidential power. The unitary executive thesis rests upon the “Oath” and the “Take Care” clauses of Article II of the Constitution. In the first, the president upholds an oath to defend the Constitution, which has meant that a president is not obligated to defend or enforce sections of law that he determines, independently, violate the Constitution of the United States. For example, in 1986 Attorney General Ed Meese spoke at Tulane University in which he argued that “constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government.” This idea was echoed by Justice Scalia, in a 1991 concurring decision in which he wrote:

Thus, it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws,… or even to disregard them when they are unconstitutional.

The second enables the president to insure control over the deliberative process within the executive branch and to exercise a great deal of influence over the vast administrative state, even to the independent regulatory agencies and commissions. To the unitary executive thesis, since the president is the only nationally elected political figure, he is accountable for the way in which policies are made, and thus he should be given control to insure all policies conform to the wishes of his national constituency. What this has meant in practice is the president has controlled information within the executive branch despite the insistence of the Congress to obtain the information, and it has meant the president has influenced regulatory policy in a way that benefits his preferred political constituents.

Hence when President Bush uses the term “unitary executive branch,” he is vigorously advocating an expansive form of presidential power.

The implication for allowing the unitary executive thesis to advance unfettered is that it tilts the constitutional system in favor of the president. In fact, the Bush presidency provides an up close examination of how the unitary executive theory works in practice:

The Energy Task Force

The Supreme Court last spring decided the case involving Vice President Cheney’s energy Task Force that was formed in 2001 to deal with the energy crisis in the United States.

Critics argued that the energy task force was made up mostly of large energy concerns, such as Enron, that sought to benefit enormously from a national energy policy. These critics wanted to gain access to who attended these meetings with the Task Force, how many meetings were held, and what was discussed. A federal district court asked for limited discovery in camera of the meetings held at the White House. The administration, in an unprecedented display of resistance, appealed this decision all the way to the Supreme Court, arguing that the release of this information would interfere substantially with the President’s expressed “constitutional authority, including his responsibility to recommend legislation to Congress and his power to require opinions of his department heads,” or with his supervision of the unitary executive branch.

The Supreme Court handed down a decision that skirted the central constitutional issues at hand and remanded the case to the lower courts for reconsideration. The administration’s position however remained firm—what goes on inside the White House is nobody’s business but the President’s.

Regulatory Oversight

“The New York Times” and “The Washington Post” both ran stories recently on the regulatory initiatives of the Bush administration that tilted regulations in a decidedly corporate direction, even sometimes contrary to the expressed wishes of the Congress. This has involved new regulations that have passed Congress as well as revisiting regulations established in previous administrations—in essence making law backwards. While the rest of the country has been focused on the war on terror or on the upcoming presidential election, the Bush administration has pushed through regulations that have allowed logging in federal forests, diluted protections for coal miners, and cancelled rules that required hospitals, prisons, drug-treatment centers, and homeless shelters to test their employees for Tuberculosis. The Bush administration has been enormously friendly to business, prompting presidential historian Robert Dallek to opine that no administration “could have been more friendly to business than [Herbert] Hoover until the Bush administration.”

The Signing Statement

The presidential signing statement is usually a written (but also sometimes verbal) statement the president issues when signing a bill into law. The practice of issuing a signing statement dates to the administration of James Monroe, but since the Reagan administration the practice has escalated in use and in intensity.

The particular type of signing statement that should be important to all who study presidential power is those that claim a constitutional disagreement with a particular provision or provisions of the bill the president is signing. The president may signal to Congress his unwillingness to defend or enforce sections of the bill he finds constitutionally disagreeable.

Since taking office, President Bush has issued over 100 constitutional challenges to bills he has signed into law, often without any knowledge from the Congress or the American public. In fact, so pervasive was the practice that Senator Patrick Leahy added language to a Department of Justice appropriations bill in 2002 that required the Attorney General to report to the Congress any instance in which the administration was refusing to enforce sections of law. In President Bush’s signing statement to the appropriations bill, President Bush construed this section to mean that the president shall decide what information to give to the Congress and only if it coincides with his constitutional obligations. Then the President proceeded to make an additional seventeen constitutional objections to the bill.

The important point is that the Bush administration has been aggressive, and undeterred, in refusing to enforce particular provisions of law that it disagrees with. The fact that Congress does not challenge the president allows a precedent to be established that advantages the president in issues of constitutional power.

The Bush administration has done a great deal to advance presidential power in ways that most of us still cannot understand. The unitary executive is far more than mere symbolism—as demonstrated in this post, it is a term with real constitutional implications. And if the president wins a second term, we should brace ourselves for an even greater push for unilateral presidential authority without the possibility of an election on the horizon to hold the President and his agents in check.


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