anaxarchos
07-23-2007, 03:54 PM
Huh
You are really are going toward investigatvie journalism aren't you. That sounded more like a Chlamor post. I did sort of detect the direction you were going but
I always hesitate to talk about shit like this because they haven't passed from the buzzword and sound bite stages yet.
I've never seen how it was cvery onstructive to claim George Bush = King since it mainly amounts to the hysterics you mention like "OMG, we've got to restore the rule of law!!!". I do see your point though, which is reinforced by the heavy attempts to obscure that very point (ie the endless reverence for checks and balances, the "fortuitious" development of a strong and assertive SCOTUS that never actually seems to assert itself contraposed to the executive, the constant appeals to the authority of Congress etc).
To some extent this has been true and even tacitly acknowledged for a while -- especially as it comes to declarations of war. Of course now we have people (especially conservatives) out and out SAYING that freedoms need to be "restricted" for the good of, well, freedom. That I suppose is new, at least rhetorically.
Are you sure, though, that you want to claim Bush has placed himself anymore above the law than say Reagan? I am honestly asking because I don't know..my impression would be no but it sounds like you are digging into this in depth.
What point are you hoping to hammer home by claiming there is a Unitary Executive? Liberals would obviously take it as confirmation of their own nutty theory that George Bush is decadently running amok..or Dick Cheney..and will never acknowledge that feature to be "built-in". I mean, if Reconstruction isn't enough to inform us on tokenism, what is?
Good questions, all... My objective was not to play "jailhouse lawyer". The thing is changing before our eyes, though. In some ways, it is just like religion. After a hundred years of, "well, err... maybe it wasn't seven days... it was figurative days, and it's kinda a parable, you know?", suddenly we get, "5000 years to the day and everyone had dinosaurs as pets and they were all named "dino" and Darwin is burning in hell...". This counts as a "roots" journey for the "constructionists". Kelley is an absolute apologist but you can see his drift below:
Christopher S. Kelley, Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency, 2005
http://www.cageprisoners.com/downloads/kelleypaper.pdf
There are some who argue that the unitary executive has existed since the Washington administration. In particular, Steven Calabresi and Christopher Yoo have launched an ambitious project (in part with other scholars) to date the unitary executive to the Washington administration. They attempt to examine a variety of presidential actions—the presidential removal power to the independent counsel statute—to highlight how presidents have always aggressively pushed the principles of the unitary executive. While others have challenged their argument, it is not my intent to use this paper to engage that debate. My purpose is to argue for the last 30 years, something changed within the American political environment that made it very difficult for any president to govern. And it is in this time period in which the unitary executive theory is the most explanatory.
I have argued in other places that the twin circumstances of Vietnam and Watergate profoundly changed the American presidency, over and beyond the other changes it brought to the political system. In one respect, the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate. Congress unleashed an assault on presidential prerogatives, seeking to rein in the “imperial presidency.” It was up to some very creative people who worked either in the White House or in the Department of Justice (particularly the OLC) to fight back all of these attempts to strip the president of his powers. Thus by the end of the 1970s many feared that an imperial presidency had become an “imperiled” presidency.
On the other end, presidents were still expected to lead, but leading in this new environment would be nearly impossible. If the president would be unable to reach out to the Congress in the manner he once had, then he would have to turn inwards and govern through administrative actions. An administrative strategy would allow the president to accomplish through the executive branch agencies what he was unable to accomplish legislatively. Thus it was during this period that all sorts of creative “power tools” were used extensively—the executive order, administrative clearance, unilateral policy declarations, signing statements, and so forth.
The unitary executive has mostly been championed by the founding members of the “Federalist Society,” a group of conservative lawyers who nearly all worked in the Nixon, Ford, and Reagan White Houses and who understood the type of political climate the president operated in and understood what it took in order to succeed. Thus, the individuals who have written the most prolifically towards the unitary executive theory were also former members of the Reagan legal team—Calabresi, Ed Meese, Michael Stokes Paulsen, Douglas Kmiec, and Johnathan Yoo, to name a few.
Presidential Power: Hard or Soft?
The dominant explanation of presidential power still resides in Richard Neustadt’s “Modern Presidency,” with its emphasis on the ability of a president to bargain and persuade. Neustadt envisioned a weak president who was constantly under pressure from domestic interest groups, foreign governments, members of his own party, his cabinet appointees, the media, the American public, and especially the Congress. Even more problematic, the office of the presidency provided very few powers for the president to navigate this hostile terrain. Hence, power rested upon the ability of the person who occupied the office to see to it that others came to share his vision if the presidency was to be successful. Ever since the FDR presidency, presidential scholars have measured presidential power by the president’s standing with the public (public opinion polls) or his success in the Congress (number of members who vote with the administration’s plan). It was deemed a failure if a president had to rely upon the presidential veto since that indicated an inability of a president to bargain and persuade.
The unitary executive theory is fundamentally different. It assumes hostility in the external political environment and seeks to aggressively push the constitutional boundaries to protect the prerogatives of the office and to advance the president’s policy preferences—something Ryan Barilleaux terms “venture constitutionalism.”
We can witness the hard power of the unitary executive to protect the prerogatives of the presidency in such instances as the battle against the legislative veto, against comptroller general (an agent of Congress) involvement in executive branch affairs, and a battle against the attempt by Congress to establish executive branch departments and officers immune from presidential control. It also involves the unilateral attempt by the president to gain control over the executive branch regulatory process.
Part IV—Conclusion
This paper set out to explain a different theory of presidential power that would enhance our understanding of what has taken place in the presidency over the last 25 years. It was not the intent of this paper to make broad claims about the new dominant paradigm to understanding presidential behavior—rather, it has been my hope that an understanding of the unitary executive will help us understanding why presidents have behaved as they have when the ability to bargain and persuade has broken down.
To restate, the unitary executive argues that the president has aggressively pushed the boundaries of constitutional power in order to protect the prerogatives of the Office and to control the executive branch agencies. It has developed over the course of three presidencies—Reagan, Bush I, and Clinton. It has only been in the Bush II administration that the unitary executive has fully developed.
President Bush, since the first day of his presidency, has been very aggressive in his defense of presidential power, much to the dismay of his critics and opponents, who have underestimated his administration since the Supreme Court decision in “Bush v. Gore.”
Through the use of presidential signing statements, executive orders, and memoranda, the Bush administration has often governed unilaterally when faced with political and/or constitutional obstacles. While the “Modern Presidency” fails to explain such aggressive use presidential power, the unitary executive does not. I would expect that the theory will continue to be developed through the remainder of Bush’s second term in office, particularly as he comes to be seen more of a lame duck as the political spotlight moves on to the 2008 election. We only need to recall the dramatic use of executive power in the waning days of the Clinton administration to guess what the end of the Bush presidency will look like.
The unitary executive thesis helps us to understand presidential behavior across presidencies, which is an additional reason why we should understand its core tenets. In the first term of the Bush presidency there were a number of criticisms regarding the emergence of a “new imperial presidency.” The fact of the matter is, in the course of the Clinton administration the same sorts of criticism could be heard, only from a different group of opponents.
The problem in these idiosyncratic criticisms of the presidency is it fails to understand how and why presidents push the envelope of constitutional power. And the danger in this is that unilateral actions taken by a president that go unchecked establish a precedent for the benefit of future presidents. And when a precedent is established, the courts are reluctant to find the action unconstitutional if it has gone unanswered by the Congress.
Thus for the current Congress, while it may be seen as a plus to have a co-partisan in the White House who aggressively asserts constitutional power, the problem occurs in the future when their political fortunes turn and a Democrat comes to occupy the White House. Then any chance to check the presidency is difficult since a pattern has been established.
I hope that this paper serves as a signal to all of us interested in our constitutional system of separation of powers and presidential power, that this theory of the unitary executive will helps us understand the evolution of power over the past 25 years as well as why a president behaves the way he does when presented with obstacles in his path.
"Power Tools"?