The "Unitary" Executive

[norml]

March 31, 2006

The "Unitary" Executive
by James Richard Brett


http://www.opednews.com

Con Law the students call it. It is shortspeak for Constitutional Law, the study of the United States Constitution, its interpretations, and ramifications. Con Law is at the center of things these days, at least since George W. Bush and his administration have been claiming that under the principle of "the Unitary Executive" the hallowed principle of crisply separated governmental powers is obsolete.

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George W. Bush (and his mentors Dick Cheney and Donald Rumsfeld) took to the theory of the Unitary Executive like Marine Corps landing craft to a hostile beachhead. To give you an idea of the tautologically absurdity of the notion, though, consider that George has relied on the analysis not of arm's-length objective thinkers but instead hired-gun attorneys, whose very livelihoods depended upon pleasing George and his junta. These three "scholars" have usurped the function of the courts and done so on the connivance of the President. It is, whether they like to think of it that way or not, a criminal conspiracy ... and they must be brought to Justice.

We learn of late that George has taken upon himself the privilege of interpreting and altering legislation by issuing "signing statements" that may reverse or negate the intent of the legislation. These statements would be unnecessary, of course, if his own party agreed with him. But that is not the case. The Congress can over-ride any Presidential veto, so, for example, in the case of the legislatively mandated banning of torture, George usurped the legislative branch by issuing a contradictory signing statement.

Obviously the "Unitary Executive" theory is dangerous nonsense. Just as obviously, though, is the fact that since Richard Milhous Nixon the notion has been gaining some popularity inside the Con Law profession, among those who think that the changed circumstances of our era demand changed views about our form of government. Okay, let us suppose for a hypothetical moment that modern nuclear power and weapons, anti-biotics, television, computers, internet, interstate highways, global corporations, extended life expectancy, and maybe a hundred other significant changes since 1789 have rendered our the separation of powers doctrine built into our Constitution obsolescent. How would one go about changing the system to something more suitable?


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http://www.opednews.com/articles/opedne_james_ri_060331_the__22unitary_22_execut.htm

[enid602]

1. *

I like to think of him as a Unitary Simpleton.

[Uncle Joe]

3. I prefer,

the urinary executive.

P.S. the word "poor" is allowed between urinary and executive in an emergency.

[Igel]

2. I've run across a few theories of the

unitary executive--more precisely, alternative formulations and assertions as to the scope of the principle. Few dispute the unitary legislative or unitary judicial theory, not called that because there's little need for the claim.

The odd interpretation that the presidental signing statements somehow overwrite (or are intended to overwrite) the text of a law that Congress passed impinges, however, on what a basic 'unitary legislative' theory would look require. Absent precedent and laws of war, military tribunals would impinge on the 'unitary judicial'.

Some unitary executive formulations I find acceptable; at least one is simply the status quo from 1800 to maybe 1950. Others are more far-reaching and are more troubling. Presumably JRB is talking about the more extreme formulations, but on the face of it he includes the more traditional ones. He should have hinted as to which 'flavor' of the theory he had in mind--or stated that he was talking about even the most moderate version.