Tuesday, July 18, 2006

Tales from the Unitary Executive, Part II


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.


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.

Sometimes I can hear my bones straining under the weight of all the lives I'm not living.
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