Kagan's Views On The "Unitary Executive" Theory
Posted on Wed Apr 14, 2010 at 11:02:21 AM EST
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When discussing Solicitor General, and probable SCOTUS nominee, Elena Kagan's views on the unitary executive theory, it is important to understand what is meant by the theory of the unitary Executive Branch. I made this distinction during the Alito hearings of 2006. The Bush Administration took what I believe is a respectable theory of a unitary Executive Branch and distorted it to support their lawlessness:
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. [. . .]
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 infamous Bybee Memo put it this way:
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