Friday, May 26, 2006

President Gone Rogue: Part II

Today is Friday, 26 May 2006.

“In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” (Tom Paine, Common Sense)

“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.” (James Madison, The Federalist Papers, No. 47)

“When the President does it, that means that it's not illegal.” (Richard M. Nixon)

In this Nixon quotation, in a nutshell, as it were, is the essence of the anti-Constitutional interpretation known as the “unitary theory of Executive power.” This theory is the “intellectual” foundation of the Bush regime’s attempt to subject the Legislative and Judicial branches to the absolute power of the Executive.

Wikipedia, in the article “Unitary Executive Theory,” provides a good summation of the Unitary Theory: “The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language along with the Take Care Clause ("[The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."”(quoted from "The Structural Constitution: Unitary Executive, Plural Judiciary" by Calbresi and Rhodes, 1992)

In practice, this means that the president is absolute master in his own house: any Congressional interference in the Executive branch is prohibited. Should the Securities and Exchange Commission report to the president that it has evidence of massive fraud by a publicly-held company, one whose executives have raised tidy sums for the president and his party, the president is within his rights to quash the investigation and order all evidence turned over to the supposedly-offending company. Again, the president could order the Federal Communications Agency to revoke the license of any broadcast outlet whose journalism had criticized him.

A second component of Unitary Theory is that the president holds “plenary” powers. Under American constitutional law, the best definition of “plenary” may be found in Black’s Law Dictionary: “Full, complete, absolute, perfect, unqualified.” Adherents of Unitary Theory pretend this is particularly the case in the president’s role as “commander-in-chief.” They claim that, if the president invokes national security, his powers as commander-in-chief are absolutely unfettered by the Legislative and Judicial branches. (They ignore the fact that the president is commander-in-chief only of American military forces, and not of the government as a whole or the nation as a whole.)

A third component is “coordinate construction,” which “holds that all three branches of the federal government have the power and duty to interpret the Constitution.” (“The Unitary Executive in the Modern Era, 1945-2001” by Yoo, Calabresi, and Colangelo, 2004) “According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts. The coordinate construction theory counters the long-standing notion of “judicial supremacy,” articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury vs. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: “It is emphatically the province and duty of the judicial department to say what the law is.”” (“The Unitary Executive: Is the Doctrine Behind the Bush Presidency Consistent with a Democratic State?”, by Jennifer Van Bergen; 2006;

(Thanks of your author to Van Bergen for this perceptive and lucid essay; it captures what he thinks in a more rigorous legal approach. Every citizen should read it.)

Now, of course, when executing the laws the president must determine what he believes it is the law requires of him, and then do it. However, it has been settled law for more than two centuries that the president’s interpretations are subject to Constitutional determinations by the Judicial branch. If the Judicial determines that the presidential understanding of a law is wrong, then it is wrong, period, game over. It is this settled law the coordinate construction theory defies and seeks to overthrow.

More than any other president, W. Bush as made use of so-called “presidential signing statements” (at least 750 times). These statements are promulgated when the president signs a bill into law, giving his understanding of the meaning of the law. Bush’s statements, as in the case of the recent so-called McCain Anti-Torture Bill, often assert that the president is free to ignore and violate the law.

It is of course of interest what a president thinks a law means. However, for the purpose of Constitutional law, it is only what the Legislative intended the law to mean that is relevant. The Judicial may consider what a president thinks a law means, as it may consider what you or I think a law means, but the president’s opinion is no more decisive than your opinion or mine. Again, it is the opinion of the Legislative which counts. (And, if the Judicial determines the law as intended by the Legislative is unconstitutional, game over.)

Again from Van Bergen:

“Another early American, George Nicholas, eloquently articulated the concept of "power divided" in one of his letters:

“The most effectual guard which has yet been discovered against the abuse of power, is the division of it. It is our happiness to have a constitution which contains within it a sufficient limitation to the power granted by it, and also a proper division of that power. But no constitution affords any real security to liberty unless it is considered as sacred and preserved inviolate; because that security can only arise from an actual and not from a nominal limitation and division of power.“ (G.N.)

"Yet it seems a nominal limitation and division of power - with real power concentrated solely in the "unitary executive" - is exactly what President Bush seeks. His signing statements make the point quite clearly, and his overt refusal to follow the laws illustrates that point: In Bush's view, there is no actual limitation or division of power; it all resides in the executive.” (V.B.)

King George III is dead; long live King George II.


Tune in tomorrow when the MoB pauses in its series on the Unitary Theory of Executive Power, as we remember Enron.


Anonymous La_Libertine said...

Examples of the president's signing statements (aka B*sh giving the finger to Congress and our Constitution - again, and again, and AGAIN)
From the Boston Globe 4/30/06:
"Since taking office in 2001, President Bush has issued signing statements on more than 750 new laws, declaring that he has the power to set aside the laws when they conflict with his legal interpretation of the Constitution..."
March 9: Justice Department officials must give reports to Congress by certain dates on how the FBI is using the USA Patriot Act to search homes and secretly seize papers.

Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.

Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.

Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks."

Plus eight more examples at:

Yet all we hear about this from the very Congress that's been dissed is crickets chirping... Same from the MSM, no outrage whatsoever... I mean, shouldn't these 750 excuses to break the law be BIG NEWS?

10:50 PM  

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