W's Invisible Friend: 2

Today remains Friday, 19 October 2007.

An amplification of my remarks on the Unitary/Invisible Friend Theory of the Executive.

Some would argue that Unitary Theory should refer only to the notion (and I employ that term in the old Quaker sense, as a false idea) that the president is absolute and exclusive master in the Executive branch.

For example, UT advocates would argue that members of the boards of agencies such as the Securities and Exchange Commission, which are authorized by statute, and unmentioned in the Constitution, should be appointed by the president without reference to the advice and consent of the Senate, and that their appointments should be terminable at the sole whim of the president. Thus, were the S.E.C. to investigate criminal activities by a publicly-traded company which had illegally contributed to the president’s campaign, and the president ordered the S.E.C. to cease its investigation, and the S.E.C. refused, the president could summarily fire its board and install minions who would grant his every desire.

An absurd example, some would object, could never happen. But there’s the rub with absolutes: if the president is entirely master in his own house, it follows inexorably that the president may commit acts which, while perhaps not in themselves criminal, have the direct effect of causing crime.

Some would argue that Unitary Theory does not include necessarily the notion of inherent or invisible presidential powers. I submit that it is obvious on the face of it that “exclusive” and “inherent”. The exclusive or Unitary Theory contends that there are no Constitutional constraints upon the Executive in the exercise of executive power.

This would mean that there is no check upon the Executive, and that Chief Justice John Marshall was an ass in Marbury v. Madison when he contended that only the Supreme Court could decide what the law is, and that in fact the law is what the Executive, backed by the full violence of its police and military powers, says it is. (I’m sure some of you were wondering why Marbury had not yet made an appearance.)

The only way to dispose of the quaint concept of more than two hundred years of checks and balances is by appealing to inherent, invisible, and imaginary powers unenumerated in the Constitution.

By necessity, “exclusive” and “inherent” are joined at the hip, go together like love and marriage, pork and beans, Sodom and Gomorrah, etc.

I should also mention that one of the most wicked consequences of the Unitary/Invisible Friend Theory is demonstrated in the case of Jose Padilla. The Bush-Cheney regime contends that the Executive has the inherent power to classify any American citizen as an illegal enemy combatant, arrest them, and detain them, without charge and by military force, for any length of time, including until death, without right of appeal to or any interference by civilian courts.

Dear reader, this means you, this means all of us.
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In reply to a comment to my original remarks: I would support for Attorney General someone who has never offered any scrap of support for the pernicious Unitary/Invisible Friend Theory, who has actively opposed it, and who has actively opposed its foremost proponent, W. Bush.