Balkinization  

Tuesday, July 18, 2006

Tales from the Unitary Executive, Part II

JB

You may recall that the Bush Administration halted the Justice Department's probe into the legal ethics of the NSA's domestic surveillance program on the grounds that the Department's own lawyers lacked the necessary security clearance to investigate any possible misconduct. As I pointed out at the time, this had the ironic consequence that private phone company employees at AT&T and other corporations had sufficient security clearances to know what the NSA was doing- because they worked with the NSA in running the program-- but the Justice Department's own ethics lawyers did not.

Today Attorney General Gonzales noted that the decision to cut off any Justice Department inquiry into ethics violations was made by the President himself.

This revelation nicely symbolizes the problem we currently face. The unitary executive theory demands that there be a final chain of command in executive authority that leads all the way up to the President, or, in other words, that the President is the boss of everyone in the Executive Branch and, at least in theory, has the final say on anything that anyone in the Executive Branch does. (For the moment I put aside the obvious counter-examples in the independent federal agencies).

But if one adopts this vision of Executive power, then it becomes extremely important to have some other method outside the Executive branch of overseeing the decisions that the President makes. Otherwise the President will be sorely tempted to confuse what is necessary to safeguard the country with what helps him avoid oversight and political embarrassment, and he will use his position as capo di tutti capi of the Executive Branch to enforce his will.

For this reason, the idea of a unitary executive-- i.e., that the Executive Branch ultimately has one boss-- must not be confused with another idea sometimes also identified with the "unitary executive": the notion that the President has inherent authority to do certain things (because, for example, they are "executive" in nature) and that in doing them he may not be checked, impeded, regulated, or overseen by the other branches. Indeed, *precisely* because the President is ultimately the boss of everyone who works beneath him in the Executive Branch, somebody who *doesn't* work for him must be able to check him.

And what that means is that these two different interpretations of the unitary executive-- which are often confused with each other-- are actually at war with each other. You can have the President be the boss of everyone in the Executive Branch or who exercises executive functions. Or you can make the President immune from oversight and checking by the other branches. But you can't have both. If you have both, you don't have a system of checks and balances. You have a system that produces corruption, mismanagement, abuse of power and tyranny.


Comments:

JB: For this reason, the idea of a unitary executive-- i.e., that the Executive Branch ultimately has one boss-- must not be confused with another idea sometimes also identified with the "unitary executive": the notion that the President has inherent authority to do certain things (because, for example, they are "executive" in nature) and that in doing them he may not be checked, impeded, regulated, or overseen by the other branches.

Thank you for highlighting this distinction, which is often obscured. The term of art, "unitary executive," has been hijacked by proponents of the second idea. That conflation has been used alternately by political liberals and conservatives to spin particular arguments one way or another.

Consequently, there is no commonly agreed-upon definition of the phrase. President Bush often uses the term "unitary executive" in his aggressive signing statements, but such usage obscures more than it informs.
 

Here's something that used to be commonly agreed-upon: you can't kill investigations into your own behavior without creating the appearance of impropriety.
 

I have been waiting for someone to expressly point out that the president's conception of his power as the "unitary executive" -- i.e., that he has inherent authority take whatever action he thinks necessary, authority which may not be checked or regulated or overseen by the Supreme Court or Congress -- is in essence the power of a despot. It is the same power that Saddam Hussein had; that Adolf Hitler had; that Pinochet, Lenin, and a thousand other dictators had: the power to do whatever you want because whatever justification you use for your actions cannot or will not be challenged.

While Bush may not want to use his power to ends as nefarious or oppressive as other dictators have, his claim to power is nonetheless, without too much reading between the lines, a claim to dictatorial power. In such a world, the freedoms we enjoy are thanks solely to the good grace of the executive, because he has the ability to take them away. (Nevermind that the Framers carefully crafted our Constitution so that the people would never again have to rely on the benevolence of those in power.)

"But Bush has a good heart!" some will claim. "He believes in freedom!" Well, maybe. But even if true, it doesn't matter. If Bush succeeds in getting the other two branches to endorse his version of the unitary executive, history will take its natural course according to the old saying we all know to be true: absolute power corrupts absolutely. It may not be George W. Bush, or the next president, or the president after that, but at some point down the line we will get an executive who uses his power for truly oppressive and cruel ends, and America will become essentially a Fourth Reich or the next USSR in terms of scope and power. The day the Supreme Court endorses Bush’s concept of the unitary executive is the day we pass the point of no return on the road to hell.
 

I don't know if there is more to the story, but what we know so far is pretty bleak. Basically, the Attorney General acquiesced when the President said that the Office of Professional Responsibility was barred from looking into a potentially unconstitutional program.

I hate to say it, but even back in the Nixon administration, they had officials who would have resigned, rather than carry out an order like that.
 

CN:

Absolutely correct. My biggest fear is another S.Ct. appointment by Mr. Bush. A 5-3 Hamdan can easily shift to a 5-4 Hamdan reversal. My hope is that at least one of Mr. Bush's appointments lives up to his oath to the Bar and the Constitution.
 

Everybody is fixating on the AG Gonzales revelation on Bush vs the OPR.

As telling as this may be (assuming this is factual and not a crude attempt to enhance Bush's image as a DECIDER) I found the hearing useful because it was highly informative as to their current thinking and where that may take them in the future.

One telling moment was when Sen. Kennedy asked, half believing himself, whether the administration is really trying to get the FISA court to issue them a blanket surveillance warrant in direct contravention of the IVth amendment. ("no warrants shall issue, but ... particularly describing the place to be searched, and the persons or things to be seized.") Apparently that is still news for some senators.

Gonzales was more than happy to confirm this in that signature half jeering way of his. The sense was that the Committee was mostly ill at ease with the idea.

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Perhaps the most significant moment of the hearing was when Sen. Feinstein stated that from what she knows about the program:

"very conscious effort is being made not to submit ... content collection to the FISA court".

That is major, if true.

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Also DeWine is still dead, no takers for Specter, all other proposals still face impossible odds.

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PS. If you watch it skip over Republicans, they had nothing to say of any significance. Honest.

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House and Hoekstra tomorrow.

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"All power tends to corrupt and absolute power corrupts absolutely."
John Emerich Edward Dalberg Acton, 1st Baron Acton
http://en.wikiquote.org/wiki/John_Dalberg-Acton%2C_1st_Baron_Acton

Just thought this quote might sound appropriate in this context.
 

Gonzales may not be very speedy but it seems as if he is engaged in self-defense: The President made me do it. Now what might John Dean have told Nixon under the circumstances?
 

JB, you maty wish to review the rest of Gonzalez' presentation. While the President's oversight of the DOJ investigation is most troubling, I think there are other curiousities on display in Gonzalez' opening statement.
 

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