User:Federal Street/legality of the unitary executive

In U.S. political and legal discourse about the form of the United States government, the unitary executive theory (UET) is proposed to become a part of the unitary executive doctrine (UED).

In proposing that the UET which Samuel Alito has advocated to the Reagan and Bush administrations should be included in the UED, it is intended and allowed by the constitution that the proposal be acted on by the executive branch and that there be consequences.

The intent is that when this action triggers a check or balance by another branch there will be debate between the several branches which results in agreement on how to describe the relationships between the branches of government in a way which either emphasizes the unitary executive authority of the President over all parts of the executive branch or does not and this will then become a part of the unitary executive doctrine.

Department theory

Departmental Theory refers to Madison's General Idea of the Separation of Powers.

"This idea of popular constitutionalism is sufficiently foreign to modern sensibilities to warrant at least brief explanation. Constitutional law, as originally understood, was different from ordinary law. It was law created directly by the people to regulate and restrain the government, as opposed to ordinary law, which is enacted by the government to regulate and restrain the people.

"A Constitution," wrote Judge William Nelson of Virginia in the 1790s, "is to the governors, or rather to the departments of government, what a law is to individuals." The object of constitutional law was to regulate public officials, who were thus in the position of ordinary citizens with respect to it: required to do their best to ascertain its meaning while going about the daily business of governing, but without ultimate authority. Instead, their actions and decisions were subject to direct supervision and correction by the superior authority of the people.

Just how "the people" exercised this authority changed over time. In the 18th century, when politics was mostly local and law enforcement depended on active community support and participation, popular resistance was informal and extralegal—consisting of everything from polite petitions for a repeal to outright obstruction of the law in the form of jury nullification and violent mob action. The creation of a national republic led to efforts to domesticate these sorts of activities. Whereas 18th-century constitutionalism had imagined a wholly independent people checking the government from without, republicanism made it possible to think of the people acting in and through the government, with the different branches responding differently to popular pressure depending on their structure and their relationship to the polity.

The resulting theory, which emerged clearly only in the 1790s, is known today as "departmentalism." Best articulated by James Madison and Thomas Jefferson, the idea was ultimately straightforward.

Each branch of government—the legislature, the executive, and the judiciary—would be entitled to offer and act on its views of the Constitution when necessary in the course of ordinary business.

In most instances, the branches were expected to agree, and when disagreements arose they could be resolved by negotiation and accommodation. If this proved impossible, Kentucky Senator John C. Breckinridge explained, "[a] pertinacious adherence of both departments to their opinions, would soon bring the question to issue . . . whose construction of the law-making power should prevail"—by which Breckinridge meant that adherence by different branches to conflicting views would force the only body with final authority in such matters to decide—that is, the people themselves.

Readers familiar with the Federalist Papers, and especially the famous fifty-first essay, will recognize in this reasoning an extension of Madison's general theory of separation of powers. Madison failed to emphasize courts in 1788 because judicial review was not yet a significant element in his thinking. The departmental theory folded courts into Madison's broader scheme, but without changing its basic commitment to democratic deliberation and popular authority.

In application to UED, a counterpoint to departmental theory emphasizes the language of the Article II §1 of the Constitution of the United States:

Article II

Section 1. The executive power shall be vested in a President of the United States of America...

Departmental Theory has a comeback.

Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Samuel Alito argues in his unitary executive theory that the President has exclusive powers over the military and all of their operations as Commander-in-Chief but Departmental Theory has a comeback.

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Samuel Alito argues in his unitary executive theory that the president has complete control over every aspect of the Executive Branch but Departmental Theory has a comeback.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Samuel Alito argues in his unitary executive theory that this language vests all of the executive power of the United States in the person of the President. but Depatmental Theory has a comeback. Where Unitary executive doctrine contends this it appears to mean all of the executive power of the Executive Branch, but where the constitution says but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments this is not addressed, for by that language Congress might appoint such regulatory or oversight officials as required to keep the Executive branch in check.

Samuel Alito argues in his unitary executive theory that while the President may delegate day-to-day control to other executive agencies in the executive branch, the President is none-the-less the leader of - and therefore responsible for - all agencies operating under him. Moreover, no part of the executive branch can sue another part because "the executive cannot sue himself"; consequentially, if the judicial branch were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers. This would of course not include agencies not operating under him such as any regulatory agencies appointed by Congress.

Departmental Theory has a comeback in that the President has not the privledge or the power but the responsibility to faithfully execute the laws of the United States as passed by Congress.

As a legal document, the U.S. constitution is of the nature of a contract between the American People and their Government. The U.S. constitution is document that many people coming from a different point of reference have difficulty understanding. This is in part due to the fact that at the point of its drafting and ratification, it was a document designed to obtain maximum approval by meeting compromise positions. Thus, the drafters of the document contemplated that more specific principles would later be derived through the application of the American constitution's general tenets to specific issues. In the opinion of some scholars, then, the original document was never intended to be exhaustive on its face. Rather, it set up general principles that the three branches of government would then apply, interpret, and even amend, as they have, to build the current state of Constitutional law. As an example, the Constitution only provides specifically for the creation of the United States Supreme Court. All other federal courts are to be established by the Congress. It is not that the drafters only wanted one court; rather, they intended the number, location, and jurisdiction of these courts to be left for the Congress to determine at a later date.

Departmental theory observes in particular that the Constitution is characterized by checks and balances between three branches of government--one of the general tenets discussed above--and proposes that these branches represent different interest groups, which at the time of the constitution's drafting viewed each other with significant distrust.

The United States is a constitutionally directed Federal Republic in which the constitution as a contract spells out the respective roles of each branch of government.

Departmental theory observes that a contract can have procedural as well as substantive construction, and argues that the complete contract of the Constitution includes both elements. Departmental theory thus appeals to a procedural reading which goes back to the federalist papers and in particular Federalist Paper No. 64 written by John Jay. This conception is principally opposed to interpretations and precedents that the Constitution should be read as strictly constructed, which means read substantively rather than procedurally.

Aspects of Unitary Executive doctrine

Hierarchical Administration

The administrative aspect of the Unitary Executive doctrine observes that the Constitution vests the executive power of the Executive Branch of the United States in the President, and thus concludes that the President has the power to appoint, direct and remove executive officers, and to interpret the law as it applies to the actions of the executive branch, in the absence of judicial determination. That is to say, it is a unitary executive because all executive power is exercised hierarchically beneath the President, in the same manner that all the officers of a corporation might be organized beneath a chief executive officer. UED's proposition of a hierarchically structured Executive branch may be understood as implicit in the tripartite consolodation of power conceptualized by departmental theory.

Under Departmental Theory this must be read as intending first a Congressional check and balance be required in the form of laws such as the FISA laws and the appointment of oversight authorities such as the Securities and Exchange Commission and The Environmental Protection Agency which begin to restrict Executive authority. This then triggers a conflict which may be resolved by agreement under which the unitary executive theory is either upheld or rejected. If there is agreement to uphold then the unitary executive theory becomes a part of the unitary executive doctrine. If there is failure for the branches to agree then the authority to decide goes back to the People.

Executive supremacy

The Unitary Executive doctrine elaborates upon departmental theory by further proposing a latitudinarian reading of executive range of action, i.e. an empowered President, with a Congress and Judiciary that give great deference to the President. Such deference is necessitated, UED proposes, by potential negative ramifications of legislative and judicial branches with distinct but unbridled powers. UED observes, for example, that constitutional limitations upon the judiciary are effectively negated when they must be ultimately subjected to the judiciary's own interpretation; as a bulwark against unchecked judicial power, it thus proposes a constitutional executive right to interpretation, which may be exercised when in the minds of the executive officer a ruling exceeds the constitutional power given to the judiciary.

Under Departmental Theory this must be read as intending first a Congressional check and balance be required in the form of laws which give less deference and more oversight to the President and which begin to restrict Executive authority. This then triggers a conflict which may be resolved by agreement under which the unitary executive theory is either upheld or rejected. If there is agreement to uphold then the unitary executive theory becomes a part of the unitary executive doctrine. If there is failure for the branches to agree then the authority to decide goes back to the People.

The legal status of the Unitary Executive Doctrine

U.S. courts have not explicitly ruled on the doctrine, though some contend that Morrison v. Olson constitutes an important precedent.

The Legal status of Samuel Alito's unitary executive theory

Observing the implied and actual effect of the theory as applied by the Bush administration will probably have substantive repercussions and consequences for the entire body of rules, principles, and tenets incorporated in the Unitary Executive Doctrine.

Legal issues surrounding theLegality of warrantless surveillance when authorized by a unitary executive.

The 4th ammendment issues of NSA warrantless surveillance

Jonathan Turley, who is representing Ali al-Timimi (convicted of soliciting others to levy war against the United States), persuaded the Fourth Circuit Court of Appeals to halt appellate proceedings January 24, 2006.

The appellate court is considering whether to send the case back to the trial court to discover if NSA warrantless surveillance was used to monitor Ali.

If it does, Turley said, "the government would have to establish whether Dr. Al-Timimi was intercepted under this or any other undisclosed operation, and the court could have to look at the legality of the whole operation." ^[1]

The FISA and Congressional Authorization for the use of Military Force issues as regards surveillance without warrants

Some have suggested that President Bush, in authorizing such surveillance, is in violation of the 1978 Foreign Intelligence Surveillance Act (FISA) and the Constitution. President Bush, however, has claimed authority to approve the NSA program under the September 18, 2001 Congressional Authorization for the Use of Military Force and under his inherent powers under Article II of the Constitution.

The debate surrounding President Bush's authorization of warrantless surveillance stems from the fact that under the constitution and under FISA its ilegal.

The Atorney general, depending on an untested Unitary Executive theory set well apart from the Unitary Executive doctrine that has been used by other presidents such as Abraham Lincoln, Theodore Roosevelt, Franklin Roosevelt, Harry Truman, Richard Nixon, Ronald Reagan and William Clinton, argues that the authority of the executive branch derives from the Constitution and statutory authority to protect the nation from attack.

Its a bit inconsistant to argue that as a unitary executive the president has unitary control of the executive branch and the defense department within it and the ability to act as commader in chief of the forces of the defense department in time of war and to delare it a time of war, and at the same time needs the authorization of Congress to use force, and is obligated to comply with the restrictions imposed by the FISA Act of 1978, so for purposes of consistancy the President is no longer arguing as he did in April of 2004 that the FISA Act requires him to get a warrant.

Departmental Theory says the United States Constitution is a different type of law than ordinary law. Unlike ordinary law which is used by the government to control the people, Constitutional Law is used by the people to control the government.

Under Departmental Theory the Separation of Powers is both expected and intended to be constantly tested by each branch constantly doing everything it can to extend its power at the expense of the other branches. It is expected that there will be consequences ranging from success to impeachment and that the difficulty will either be worked out by agreement between the branches, or revert to the ultimate authority of the people.

The legal community is fascinated by the issues involved, especially the issue of whether warrantless surveillance can be justified by necessity, because if that argument holds away we no longer will be a nation of laws.

Though the President is in a postion of controlling all three branches of government, the constitution, requires him to both faithfully execute the laws and preserve, protect and defend the constitution.

The legal community is split over whether the President can sucessfully argue neither the constitution, nor the law apply to him when he finds it necessary to ignore the law in order to sucsessfully preserve protect and defend the nation.

Now that the full details of the NSA surveillance operation are known and it has now been revealed by the government that the surveillance includes data mining of American citizens entirely in the United States many people are concerned.

Its very troubling to some Americans that people are targeted for reasons of ideology. Political views that it might be suspected would offer aid and comfort to the enemy by opposing the president and showing a lack of solidarity in time of war are now considered reasonable grounds for surveillance.

Democrats, Liberals, people blogging on the Daily KOS, Quakers, anti war demonstrators, Halliburton protestors, have been wire taped, had their emails and blogs subject to review, been covertly surveilled, and arrested.

It is argued that this is necessitated by a post 9/11 mentality and a war where the enemy may be an individual living in the United States. It is further argued that the FISA laws written in 1978, which require warrants that comply with the constitution which was written centuries ago, simply are obsoleted by the exigencies of this modern struggle.

The consensus is now that of Harold Koh, dean of Yale Law School, and Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, who argue that FISA clearly makes the wiretapping let alone the data mining illegal^[2];

Those who like John Schmidt, former Associate Attorney General, ^[3] and Douglas Kmiec, chair of Pepperdine Law School, argued either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war are generally conceeded to be wrong. see "Other legal analysis" below.

Those such as K.A. Taipale of the World Policy Institute and James Jay Carafano of the Heritage Foundation ^[4] and Philip Bobbitt of the University of Texas Law School ^[5],who have suggested that, regardless of how one feels about this important Constitutional power issue, FISA itself is no longer adequate to deal with certain technology developments, particularly the transition from circuit-based communications to packet-based communications and needs to be amended may have a better case, but the problem is that the ilegal actions were taken before any such ammemdment was ever proposed.

The 1978 Foreign Intelligence Surveillance Act defines the Justice Department's authority to conduct physical and electronic surveillance for "foreign intelligence information". FISA provides two mechanisms to perform searches. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order. 50 U.S.C. §1802(a)(1). ^[6] In this situation, the surveillance must be directed solely at communications used exclusively by foreign powers, not U.S. persons. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law but not authorized by statute. FISA defines a "foreign power" as a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. FISA limits its use against US persons who are citizens, foreign resident aliens of US corporations. Finally, FISA applies to surveillence whose significant purpose must be for gathering foreign intelligence information, which is information necessary to protect against actual or potential grave attack, sabotage or international terrorism.

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA. ^{[7] [8]} These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorizes his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

However, the authorization granted by President Bush to the NSA apparently uses neither FISC approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power is granted by the Constitution and by a statutory exemption. Case law supports the idea that the President has the "inherent authority to conduct warrantless searches to obtain foreign intelligence information." Article II of the Constitution of the United States of America makes the President Commander in Chief with the responsibility to protect the Nation. This authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations apply to foreign intelligence has been examined by few courts.

In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an important foreign intelligence opinion, In Re Sealed Case No. 02-001. The Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct. Furthermore, professor Orin Kerr argues that the part of In Re Sealed Case that dealt with FISA (rather than the Fourth Amendment) was nonbinding dicta and that the argument does not restrict Congress's power to regulate the executive in general.^[9]

Even assuming the President has no authority under Article II of the Consitution, the President's decision may nevertheless be protectible under FISA. Following the 9/11 attacks, Congress passed the Authorization for the Use of Military Force (AUMF). Section 2(a) of the AUMF authorized the President to "use all necessary... force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks." Under FISA, this provides for two basic legal arguments. First, FISA allows for both physical searches and electronic surveillance without a court order for fifteen days after a declaration of war by Congress. 50 U.S.C. §1811. Several cases, including Hamdi v. Rumsfeld and Rumsfeld v. Padilla, have construed the AUMF as a declaration of war-at least, insofar as it authorizes war against Al Qaeda and its agents—although the language it uses also has notable differences with prior declarations of war. In this case, 50 U.S.C. §1811 may permit some level of surveillance. The meaning of 50 U.S.C. §1811 is somewhat ambiguous as to scope of authority permitted under this section. One argument is that it permits the President to authorize, for a period of fifteen days following the declaration, indefinite surveillance of Al Qaeda and its agents, but the repeated reauthorization of the surveillance by the President suggests this argument is not being used by the White House. Another interpretation is that it permits short term surveillance of fifteen days authorized at any point after the declaration of war.

The AUMF may also relieve the administration of any criminal or civil liability under 50 U.S.C. §§ 1809 and 1810. These two provisions, and their corresponding provisions for physical searches, provide that intentional surveillance without authority is a felony "except as authorized by statute." The argument, in this case, is that "all necessary force" includes "foreign surveillance." In Hamdi and Padilla, the Supreme Court found that the detention of both American and Foreign citizens were "clearly and unmistakably" a "fundamental incident of waging war". Intelligence gathering, some argue, would fall under this same rubric of incidents of war. As such, if the AUMF is understood as a "statutory" authority under FISA, neither the criminal nor civil penalities would apply, at the very least, to those individuals targeted by the AUMF. However, former Senate majority leader Tom Daschle, who negotiated the language of the AUMF, explained that "the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate." ^[10]

Finally, there may be significant legal problems should information gathered under President Bush's authorization be used in criminal trials. Ordinarily, the Fourth Amendment protects the "right of the people to be secure... against unreasonable searches and seizures". It continues that "no Warrants shall issue, but upon probable cause". A number of cases have found that authorization for surveillance under FISA did not violate the Fourth Amendment. The Fourth Amendment is couched in reasonableness. Courts have long recognized exceptions from the warrant requirement for "special needs" outside "the normal need for law enforcement."

In In Re Sealed Case, the court recognized foreign intelligence surveillance is different from surveillance used for criminal prosecution. In addition, courts have rejected arguments under the Due process or the Equal protection clauses. This is not clearly the case for authorization given to the NSA by the President. Other cases have allowed the use at criminal trial of evidence obtained incident to authorized FISA.

Courts have only addressed this issue with respect to authorized surveillance of foreign powers, their agents and those communications incident to such surveillance. The courts have never specifically addressed whether it is reasonable to use evidence gained from broad warrantless surveillance, which may more broadly cover the communications of US persons. The National Security Act of 1947^[11] requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

Wartime implications

The theory of the unitary executive is often proposed when, in wartime, the executive branch asserts the imperatives of rapid military action.

Lets look at some of the implications. The Constitution says Congress has the responsibility to Declare War and issue Letters of Marque to authorize the use of force on its behalf.

Further Congress sets the rules for the Conduct of War, and only when having Declared War, it then decides to call into service the President, to act as its Commander in Chief, or execute its Letter of Marque by authorizing his use of force on its behalf, does the President begin to have any authorization to use force.

The Unitary Executive argument holds that because the President has the constitutional responsibility to exercise control over an executive branch which includes the Defense Deparment which Congress has funded, that makes him commander in chief of those forces which are in his Departments in his Branch.

Following the same line of reasoning, Congress has the obvious redress of withholding any further funding for a standing army in the Defense Department and removing this temptation from the Executive Branch. Similarly if it doesn't like the direction the Supreme Court is taking it could always decide to withdraw funding from the Judiciary. Checks and Balances remain available to the system.

Congress can pass FISA style laws to reinforce the point that the unitary executive is not above the law, but the Executive, according to UED proponents, must ultimately protect its consitutional rights and cannot allow those laws to infringe upon Executive constitutional perogatives. When the statutes enfringe on Executive powers, UED implies that the Executive can (and should) view these statutes as "advisory".

To UED opponents, this is the equivalent of a blank check, which would allow the Executive to suspend Hapeus Corpus, spy on innocent Americans, and would even allow torture, for example.

In response, the UED proponents claim that the ultimate power of Congress is the power of the pursestrings and Presidential empeachment. If Congress does not like an interpretation that the Executive branch has taken with regard to its constitutional powers (e.g., the recent questions regarding Executive authority to wiretap suspected Americans), and believes the Executive has ovestepped its consitutional powers, then Congress can remove the power of the unitary executive by revoking the blank check.

Under Departmental Theory this contraversy must be read as intending first a Congressional check and balance be required in the form of laws which give less deference and more oversight to the President and which begin to restrict Executive authority. This then triggers a conflict which may be resolved by agreement under which the unitary executive theory is either upheld or rejected. If there is agreement to uphold then the unitary executive theory becomes a part of the unitary executive doctrine. If there is failure for the branches to agree then the authority to decide goes back to the People.

History

Historically, the doctrine of the unitary executive can be understood as a sucessful attempt by a substantive body of thought which has been developing in the United States since World War II to focus power in the corporate executive rather than collective ownership of the means of production.

It is in other words as much an economic and social development as it is an application of departmental theory. It is associated with conservative legal thought and the Federalist Society, and while it originally came to prominence in regard to the independent counsel law (see Morrison v. Olson), it has recently returned to the limelight with some of the actions of President George W. Bush and the Senate confirmation hearing of Judge Samuel Alito.

Under our system of government it is much harder to reverse a doctrine which is an established body of theory than any one individual theory.

This most often will occur when a final theory extends a doctrine to the point where no agreement on the final theory undermines the entire doctrine by exposing an unacceptable final logical consequence in the theory that then reflects back on the entire doctrine.

Application by several U.S. administrations

The Lincoln administration

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads", or those in the Union who supported the Confederate cause. Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan 71 US 2 1866 that the suspension was unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed..

Interestingly, where Habeus corpus is suspended, the common law and civil law remedy's of replevin and troverwould still allow a defendent whose Liberty or Privacy or Freedom had been lost to go to a court and claim that I had a possession which belonged to me (my Freedom) which I lost and you have found and you now owe it to me by the principles of The Common law and the Civil Law to return it to me before the dispute proceeds further.

The Roosevelt administrations

Theodore Roosevelt's presidency was one of the most dynamic periods of the United States. Roosevelt had no troubles using his office to the fullest allowable power and beyond. Roosevelt extended presidential powers because he believed that he best served his country with quick, vigorous decisions. He wrote in his Autobiography:

I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition . . . (198).

Later President Franklin D. Roosevelt ordered the internment of 120,000 individuals of Japanese descent.

The Truman administration

President Harry Truman sought to take over the steel industry trying to prevent a strike during the Korean War. Yet in the Youngstown Sheet & Tube Co. v. Sawyer case the court held that his seizure of the American steel mills was unconstitutional.

The decision has had a broad impact, since it represented a check on the most audacious claims of executive power at the time. It also represented the Court's assertion of its own role in intervening in political questions, as the Court later did in Baker v. Carr and Powell v. McCormack. The Court also applied the Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action in invalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, while citing it more generally in support of its decision to permit litigation against the President to proceed in Clinton v. Jones.

The Nixon administration

President Richard M. Nixon ordered unlawful break-ins, known today as Watergate, and wiretaps against those who opposed the Vietnam War. He also tried to enjoin the publication of the Pentagon Papers. Ultimately, Nixon decided to step down in order to avoid impeachment proceedings.

The Bush administration

This administration seems to interpret the theory more extremely than the previous ones. As for what specific constitutional limitations on the judicial power President Bush may have in mind, there is heavy speculation that it relates to Professor John Yoo's position that the use of military force is, like presidential vetoes and pardons, an unreviewable matter.

President George W. Bush has applied the theory of the "unitary executive" in many of his decisions, most significantly in relation to its substantive element. He has often issued signing statements, detailing how the executive branch will construe legislation. For example, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:

The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.^[1]

In effect, Bush stated that when it comes to foreign policy, any Congressional requirements are merely advisory. It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases. Skeptics point out that he in effect uses them as line item veto although the Supreme Court already held the line item veto as unconstitutional in Clinton v. City of New York.^[2]

In another signing statement that has garnered controversy, President Bush wrote:

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.^[3]

One of the signing statements which has attracted most controversy is the signing of the McCain Detainee Amendment, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody:

"The Executive Branch shall construe [the torture ban] 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."

Since, under the "Unitary Executive" theory, the Commander-in-Chief has broad authority to use his discretion in interpreting and applying the law, the President has with that statement reserved the right to waive the torture ban.^[4]

The most recent example, in which the premise that any law limiting the Presidents power is unconstitutional is advanced by the Bush administration and its supporters, is the FISA controversy.^[5] In the words of former Vice President Al Gore:

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."^[6]

At present, the position taken by adherents of the "unitary executive" theory, and promoted by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers can not be restrained by any law, national or international.^[7] Opponents note that such a stance, which they believe resemble the Führerprinzip,^[8] is not unlike the one seen in police states.^[9] Supporters reply that it is exactly the same war power that Abraham Lincoln used to issue the Emancipation Proclamation in 1863, in the face of Copperheads who called him a dictator and sought his assassination. Sceptics are not convinced, since the Supreme Court in Ex Parte Milligan had already determined that the suspension of Habeas corpus was unconstitutional. In addition, they point to a statement by Governor Bush in December 2000 when he joked that:

“if this were a dictatorship, it would be a heck of a lot easier – so long as I’m the dictator.”^[10]

View of Samuel Alito

In November 2000, U.S. appeals court judge Samuel Alito gave a speech before the Federalist Society laying out this view:

"The Constitution makes the president the head of the executive branch, but it does more than that.... The president has not just some executive powers, but the executive power—the whole thing." (The Wall Street Journal, 5 January 2006, p. 1.)

In his confirmation hearing to become a member of the United States Supreme Court, he was asked about these comments, and he said:

"I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power.

"The second question is: When you have the power that is within the prerogative of the executive, who controls the executive?

"Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president." (Transcript of confirmation hearings, Tuesday, January 10, 2006)

Nevertheless, based upon Alito's previous statements, opponents, through many editorials,^[11] have expressed their fear he will not uphold the separation of powers as intended by the Constitution.^[12] They believe he will support the Bush administration in its interpretation of the Unitary Executive, which they suggest is that as Commander-in-Chief the President cannot be restrained by law, national or international.^[13]

See also

• Executive branch
• Extraordinary rendition
• John Yoo
• Samuel Alito
• Signing statement
• Ticking time bomb scenario
• Unlawful combatant
• War on terror

Notes

1. ^ Foreign Relations Authorization Act, Fiscal Year 2003
   • Cached version of Foreign Relations Authorization Act, Fiscal Year 2003 (pdf unavailable)
   • Foreign Relations Authorization Act, Fiscal Year 2003, signing statement
2. ^ Signing statements
   • The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration By JOHN W. DEAN, FindLaw, January 13, 2006
   • Presidential Signing Statements, and Alito's Role in Them, Are Questioned
   • White House Letter: How Bush tries shaping new laws to his liking by Elisabeth Bumiller International Herald Tribune, JANUARY 15, 2006
   • Constitutional License by Aziz Huq, TomPaine.com, January 24, 2006
   • Bush using a little-noticed strategy to alter the balance of power By Ron Hutcheson and James Kuhnhenn, Knight Ridder Newspapers, January 06, 2006
3. ^ President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006" White House, December 30, 2005
4. ^ McCain Detainee Amendment
   • The Impeachment of George W. Bush By Elizabeth Holtzman, The Nation, January 12, 2006.
   • Bush Could Bypass New Torture Ban By Charlie Savage. The Boston Globe. January 4, 2006. (Discussing Bush's claim, in a signing statement, that he has the authority to make exceptions to a law forbidding harsh interrogation techniques)
5. ^ The President's End Run, Washington Post, January 23, 2006
6. ^ US Constitution in Grave Danger By Albert Gore Jr., January 16, 2006
7. ^ Suggested interpretation
   • Bush on Trial for Crimes against Humanity By Marjorie Cohn, Truthout, January 24, 2006
   • How Much Authority Does the President Possess When He Is Acting as "Commander In Chief"? Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent By EDWARD LAZARUS, FindLaw, January 5, 2006
   • The End of 'Unalienable Rights' By Robert Parry, January 24, 2006
   • How Close Are We to the End of Democracy? by Martin Garbus, Huffington Post, January 20, 2006
   • Administration Paper Defends Spy Program Detailed Argument Cites War Powers By Carol D. Leonnig, Washington Post, January 20, 2006
   • Scholar Stands by Post-9/11 Writings On Torture, Domestic Eavesdropping By Peter Slevin, Washington Post, December 26, 2005.
8. ^ Führerprinzip
   • Holding Bush Accountable for His Crimes Tomorrow is Today: the Time for Resistance is Now By MICHAEL RATNER, CounterPunch, January 30, 2006
   • Alito - It's the Constitution That's At Stake by Thom Hartmann, January 29, 2006
   • Judge Samuel Alito and The `Führerprinzip' by Jeffrey Steinberg, Executive Intelligence Review, January 13, 2006
9. ^ The Would-Be Dictator: How We Got to This Awful Place By Bernard Weiner, The Crisis Papers, December 25, 2005
10. ^ Bush jokes on Dictatorship
    • Transition of Power: President-Elect Bush Meets With Congressional Leaders on Capitol Hill transcript, CNN, Aired December 18, 2000
    • Bush meets with Greenspan The Associated Press, December 18, 2000
    • The Would-Be Dictator: How We Got to This Awful Place By Bernard Weiner, The Crisis Papers, December 25, 2005
    • Quest for the Presidency: Bush meets with Greenspan, Quest for the Presidency, December 18, 2000
11. ^ Alito's statements
    • Kerry Makes Case Against Alito By Senator Albert Gore Jr., January 27, 2006
    • The Record and Legal Philosophy of Samuel Alito: "No One to the Right of Sam Alito on this Court" by Ralph G. Neas, President, People For the American Way
    • Alito Is Called 'Sensitive' to Executive Power By Jo Becker, Washington Post, November 5, 2005
    • Following ABC's Stephanopoulos, NBC's Williams used partial Alito response to suggest Alito rejected strong executive power by Media Matters, January 17, 2006
    • Alito Sounds Death Knell for Individual Rights By Marjorie Cohn, October 10, 2006
    • Judge Alito's Radical Views by The New York Times, January 23, 2006:
    • Constitutional License by Aziz Huq, TomPaine.com, January 24, 2006
    • George Bush's rough justice - The career of the latest supreme court nominee has been marked by his hatred of liberalism by Sidney Blumenthal, The Guardian, January 12, 2006
    • Judge Alito, in His Own Words The New York Times, 12 January 2006
    • Alito a Threat to Our Fundamental Rights'By Senator Patrick Leahy, January 24, 2006
    • Alito Once Made Case For Presidential Power By Christopher Lee, Washington Post, January 2, 2006, discussing encouragement of the use of signing statements by Samuel Alito when he worked in the administration of former President Ronald Reagan)
12. ^ Trias Politica
    • Prof testifies in Alito hearings by Hanna Mahuta, The Chronicle Online, January 18, 2006
    • Alito a Threat to Our Fundamental Rights'By Senator Patrick Leahy, January 24, 2006
    • Alito & the Ken Lay Factor By Robert Parry, January 12, 2006
13. ^ Possible view Bush administration
    • The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? By JENNIFER VAN BERGEN, FindLaw, January 09, 2006
    • How Much Authority Does the President Possess When He Is Acting as "Commander In Chief"? Edward Lazarus, Findlaw, January 05, 2006
    • Feingold: Alito Would Be "Dangerous Addition" to Court By John Nichols, The Nation, January 24, 2006
    • The End of 'Unalienable Rights' By Robert Parry, January 24, 2006
    • How Close Are We to the End of Democracy? by Martin Garbus, Huffington Post, January 20, 2006
    • George Bush's rough justice - The career of the latest supreme court nominee has been marked by his hatred of liberalism by Sidney Blumenthal, The Guardian, January 12, 2006
    • An Imperial Presidency Based on Constitutional Quicksand By Ivan Eland, January 10, 2006
    • Democracy's Battle Joined, Again By Robert Parry, December 22, 2005
    • The President Does Not Know Best By Elizabeth de la Vega, Tomdispatch.com,January 19, 2006
    • Why the Senate should not confirm Alito Supreme Court doesn't need a justice who has no interest in restraining `presidential powers' By Geoffrey R. Stone, Chicago Tribune, January 24, 2006
    • Opinion by Roger A. White, Arizona Daily Star, January 22, 2006

References

Scholarly papers

• Yoo & Calabresi, The Unitary Executive during the First Half-Century, 47 Case Western Reserve L. Rev. 1451 (1997).
• Yoo & Calabresi, The Unitary Executive during the Second Half-Century, 26 Harvard Journal of Law & Public Policy __ (2003).
• Yoo, Calabresi & Nee, The Unitary Executive During the Third Half-Century, 1889-1945, 80 Notre Dame L. Rev.
• Yoo, Calabresi & Nee, The Unitary Executive in the Modern Era, 1945-2004, 90 Iowa L. Rev. 601
• Robert V. Percival, "Presidential Management of the Administrative State: The Not-So-Unitary Executive" in Duke Law Journal, Vol. 51, 2001

Critics

• Big Brother is watching you (and blowing it) By Elizabeth de la Vega , January 18 2006
• Chinese Detainees' Lawyers Will Take Case to High Court By Carol D. Leonnig, Washington Post, January 17, 2006
• Tyrant in the White House - Bush Crosses the Rubicon By PAUL CRAIG ROBERTS, for CounterPunch, January 16, 2006
• Alito: Rubber Stamp For Unlimited Presidential Authority? Unitary Executuve theory could become law of the land by Rev. Bill McGinnis OpEdNews.Com Progressive, Tough Liberal News and Opinion January 13, 2006
• What A "Unitary Executive" Means - President As King Daily Kos: State of the Nation, January 10, 2006
• Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency or HTML Paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association, April 7-10, 2005
• Is George Bush Above the Law? by The Crisis Papers
• Bush Advisor Says President Has Legal Power to Torture Children By Philip Watts
• What Bush Wants to Hear By David D. Cole

Misc

• Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency
• The Unitary Executive During the Third Half-Century, 1889-1945
• The Unitary Executive in the Modern Era, 1945-2001
• U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court: Part I of III
• Chapter Two—The Unitary Executive Christopher S. Kelley, Miami University
• The Military Munitions Rule and Environmental Regulation of Munitions Joshua E. Latham, Boston College
• Alito faces harder review Scrutiny likely on executive power, in light of 1984 memo, NSA spying Julie Hirschfeld Davis, Baltimore Sun, December 25, 2005

External links

• DoD Bill Signing Statement (Example of a signing statement issued by President Bill Clinton)
• By Order of the President: The Use and Abuse of Executive Direct Action