What "Unitary Executive" Means In The Bush Era

Via Instapundit, Ilya Somin at Volokh writes:

Libertarian Party presidential candidate Bob Barr is one of many people who confuse the theory of the "unitary executive" with the claim that the executive has virtually unlimited power. Barr argues that "McCain has endorsed, in action if not rhetoric, the theory of the 'unitary executive,' which leaves the president unconstrained by Congress or the courts." In reality, the unitary executive argument is a theory about the distribution of executive power, not its scope.

The problem with Somin's argument is that it has been the Bush Administration that has twisted the meaning of the phrase unitary executive to mean what Barr rightly criticizes. More . . .

Somin quotes his own previous description of the "unitary executive":

The idea of the unitary executive is simply that whatever power the executive branch has should be concentrated in the hands of the president. There can be no executive officials (such as the independent counsel) who are not subject to presidential control and removal. As Article II of the Constitution states, "the executive power [of the federal government] shall be vested in a President of the United States." It does not grant any executive authority to officials not under presidential control.

Whether this is right or not, and I think it is wrong for the purposes used (indeed, given the Spending Power and the Confirmation Power, to me it is self evidently wrong), but that is not what we mean when discussing the Unitary Executive in the Bush Era. As Somin knows, the phrase has come to mean the opposite of this:

[T]he scope of executive power is relatively narrow, and that the president has no authority to ignore laws enacted by Congress, including those that constrain many military and foreign policy decisions. Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X....

I took on this very point during the Alito SCOTUS confirmation hearings:

"Some Conservatives continue to argue that Democrats misunderstand the "unitary executive" theory, saying it does not mean unfettered Presidential power. I suggest they immediately inform the Bush Administration, they say otherwise:

In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure . . . ." "[T]he case for a unitary executive seems, if anything, stronger today than it was in the 18th Century.

What does that mean? Here's what it means for Bush:

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.

The Bybee Memo put it this way:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander in Chief authority in the President. . . . Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

Alito did NOT disavow this view of an unfettered Presidential power - of the President as King. I think if Alito does not want to "confuse" Conservatives on this, he should have said expressly that he does not agree with Bush. He didn't.

Somin's argument seems to be for some otherworldly place where the Bush Administration does not exist. It has nothing to do with the current political debates.

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    Exactly right (none / 0) (#1)
    by Steve M on Fri Jul 18, 2008 at 11:09:20 AM EST
    I actually had the exact same thought when I read that post this morning.  There are two strands to the unitary executive argument, and every time the issue comes up, those guys always want to hide behind the less controversial strand.

    They want to make it into some Morrison v. Olson argument about whether Congress can create an executive official who can't be fired by the President.  Yawn, whatever.  What the Bush Administration is really trying to do is immunize the Executive Branch from any meaningful oversight by Congress whatsoever, on the theory that Congress can't even give instructions to Executive Branch officials about how to enforce the law, since everyone in the entire Executive Branch is answerable to the President and no one else.

    The theory truly puts the President above the law, because it argues that every single person with the power to enforce the law of the land can only take orders from the President.  It's an extremist theory and I have no respect for efforts to dress it up in respectable clothing.

    From the Alito Hearings (none / 0) (#2)
    by Big Tent Democrat on Fri Jul 18, 2008 at 11:16:00 AM EST
       Unitary executive: The reason it's important is that there are some people, even on the Supreme Court, who believe the unitary executive theory -- I don't know if it's always associated with the Federalist Society but sometimes associated with the Federalist Society and their members -- but the unitary executive theory gives the president extraordinary power.

        And under that scope of power theory, some argue that a president, particularly in A war time situation can ignore and violate laws as commander in chief. Critically important and timely, as we debate eavesdropping and the like.

        You have made it clear that when you spoke to the Federalist Society in 2000, you were not talking about scope, but you were talking, instead, as to whether or not he would have control over the executive branch. I hope I'm characterizing your statement correctly.

        ALITO: That's exactly correct. And I think in the speech I said there's a debate about the scope of what is meant by the executive power, but there isn't any debate that the president has the power to take care that the laws are faithfully executed, and that was the scope of the power I was discussing.

        DURBIN: My question to you is this, what about those who do argue the unitary executive scope theory? Do you agree with their analysis? Do you disagree? Would you be joining Justices Scalia and Thomas, Justice Thomas in particular in his dissent in Hamdi, in arguing that this situation a president has more power than the law expressly gives him?

        ALITO: I don't think that the unitary executive has anything to do with that. Let me just say that at the outset. And if other people use that term to mean the scope of executive power, that certainly isn't the way that I understand it.

        DURBIN: That's not your point of view. You don't accept that point of view.

        ALITO: No, I think...

        DURBIN: If an argument is made that that's how they're going to expand the power of president, as you testified today, that's not your position or your feeling -- say it in your own words.

        ALITO: When I talk about the unitary executive, I'm talking about the president's control over the executive branch, no matter how big or how small, no matter how much power it has or how little power it has.

        To me, the issue of the scope of executive power is an entirely different question and it goes to what can you read into simply the term executive. That's part of it.

        Of course, there are some other powers that are given to the president in Article II, commander in chief power, for example, and there can be a debate, of course, about the scope of that power, but that doesn't have to do with the unitary executive.

        DURBIN: So when Hamdi draws that line and Justice O'Connor makes that statement about no blank check for a president in times of war when it comes to rights of American citizens and there's an dissent from Justice Thomas who argues unitary executive, scope of powers, more power to the president, you are coming down on the majority side and not on the Thomas side of that argument.

        DURBIN: Is that fair to say?

        ALITO: Well, I'm not coming down -- I don't recall that Justice Thomas uses the term of unitary executive in his dissent. It doesn't stick out in my mind that he did. If he did, he's using it there in a sense that's different from the sense in which I was using the term.

        DURBIN: Fair enough.

    To be clear (none / 0) (#3)
    by Steve M on Fri Jul 18, 2008 at 11:25:50 AM EST
    I am not accusing the bloggers at the VC of arguing in bad faith.  I think, for the most part, they are reasonable conservatives who believe reasonable things.  Where they err is in assuming that, because they personally believe in a "reasonable" understanding of the unitary executive theory, that must be the same understanding that everyone else has of the theory.

    Sometimes it's hard to get past that assumption and understand that, in fact, the people on your own side really are advancing radical theories.


    That post was disinegenuous imo (none / 0) (#4)
    by Big Tent Democrat on Fri Jul 18, 2008 at 11:28:08 AM EST
    And they are not immune to shading arguments. None of us are.

    Maybe (none / 0) (#5)
    by Steve M on Fri Jul 18, 2008 at 11:33:27 AM EST
    They also get really, really cute when the topic is the Federalist Society.

    It was disingenuous imo too (none / 0) (#7)
    by Maryb2004 on Fri Jul 18, 2008 at 02:40:48 PM EST
    I am not knowledgeable enough to know whether the politicization of constitutional interpretational theories originated with the conservative movement or not, but the conservative movement certainly has raised the practice to an art form.

    You're right that the theory exists in two forms -the theory-in-practice, which exists to achieve desired results, and the theory-in-theory which, no matter why it exists, is used by them to obfuscate.   That exchange you posted with Durbin and Alito - what a perfect example.

    I keep hoping the people on our side will figure this out and find a way to avoid the trap of theory; but so far I've always been disappointed.

    Bob Barr had it right when he said:

    However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired.

    speaking for me as well: (none / 0) (#6)
    by cpinva on Fri Jul 18, 2008 at 12:51:38 PM EST
    Somin's argument seems to be for some otherworldly place where the Bush Administration does not exist. It has nothing to do with the current political debates.