Wednesday, July 19, 2006

The Return Of The Unitary Executive 

Jeffrey Rosen is a smart guy. He holds down a job on the faculty at George Washington University Law School and is the legal editor at The New Republic. Oh, he also churns out best selling books.

Rosen has just penned a very good article on the unitary executive, which was the hot topic back in January and has since faded into the background, drowned out by other topics such as the treatment of enemy detainees, the establishment of military tribunals, and the presidential signing statement. To understand these topics, however, it is important to have a feel for the unitary executive, which is what Rosen offers.

As I have wrote and as many of you know, my hands are dirty in the topic of the unitary executive as I proceed to work on my next book on the Bush administration. It is a topic that can be tough to explain, but I think Rosen has done a better job than I ever could.

In his piece, he offers a history of the theory, he points to the key architects, he lists the reasons why it came into existence in the Reagan administration, and then he focuses upon its use in the current administration. I have a sense that perhaps he is about to write his next book on the subject given his ability to identify the key tenets as well as how it works in practice. If this is the case, then I offer to address a couple of pitfalls to his discussion.

Rosen wishes to make the case that the unitary executive connects conservative administrations, whereby the Clinton administration gave a nod to the theory but largely left it unused. I assume this to be the case since Rosen only glosses over the Clinton administration. He notes the important role that Walter Dellinger, Clinton's head of the OLC, played in protecting presidential prerogatives in the face of a president who wished to give them away. Rosen notes that the administration submitted an ideal that the President could not propose a treaty "unless he had an environmental impact statement and waited 60 days," at which point Dellinger went "ballistic."

He skips over the Clinton administration largely because it doesn't fit with his argument: "When George W. Bush took office in 2000, the various threads of pro-executive power conservatism--the Watergate-scarred Ford veterans, the Reagan OLC team--united with younger members of the Bush OLC to embrace aggressively the idea of the unitary executive."

But you cannot get to the current administration without examining the important role played by the Clinton administration in helping the theory to mature. Not only did you have the two important OLC opinions written by Dellinger defending the presidential signing statement and defending the coordinate power of the presidency. But also the Clinton administration refused to abide by legislation ordering HIV positive military personnel out of the service, the Clinton administration refused to first appoint an independent administrator in the Department of Energy and then refused to abide by language in the law that limited the president's ability to fire the individual (the removal power is the president's and the president's alone). And the Clinton administration introduced military force into the Balkans without the blessings of the Congress, arguing that our treaty obligations trumped congressional blessing.

Administratively, Clinton overturned the two Reagan era executive orders empowering the OMB to control the regulatory agencies and put in place its own--Executive Order 12,866 that adopted the language of the two Reagan Orders and extended OMB control out to the independent regulatory agencies and commissions--something that conservatives never would have accomplished prior to the election of a Democrat President.

Similar to Reagan and Bush I, President Clinton used the executive branch agencies to adopt his policies when the control of Congress switched hands after the 1994 election. Clinton pushed through the regulatory agencies so many social regulations that Congress ultimately passed legislation that would allow it to control regulation that imposed a cost to business, yet Congress was unable to use it until the administration left office in 2001.

Rosen wants to make the case that it wasn't until the Bush II administration that the principles of the unitary executive could be put into effect. My argument is that without the Clinton administration, the Bush administration would not have had as many the tools necessary for it to exercise power, or to put another way, the Gore administration would have been able to exercise unitary power simply because the unitary executive is a continuum, used despite which Party controls the White House.

Great article nonetheless.


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