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FindLaw's Writ - Van Bergen: The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?

The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?

By JENNIFER VAN BERGEN
Monday, Jan. 09, 2006

When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.

This news came fast on the heels of Bush's shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.

And before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.

All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: Presidential power must be unilateral, and unchecked.

But the most recent and blatant presidential intrusions on the law and Constitution supply the verse to that refrain. They not only claim unilateral executive power, but also supply the train of the President's thinking, the texture of his motivations, and the root of his intentions.

They make clear, for instance, that the phrase "unitary executive" is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.

In this column, I will consider the meaning of the unitary executive doctrine within a democratic government that respects the separation of powers. I will ask: Can our government remain true to its nature, yet also embrace this doctrine?

I will also consider what the President and his legal advisers mean by applying the unitary executive doctrine. And I will argue that the doctrine violates basic tenets of our system of checks and balances, quietly crossing longstanding legal and moral boundaries that are essential to a democratic society.

President Bush's Aggressive Use of Presidential Signing Statements

Bush has used presidential "signing statements" - statements issued by the President upon signing a bill into law -- to expand his power. Each of his signing statements says that he will interpret the law in question "in a manner consistent with his constitutional authority to supervise the unitary executive branch."

Presidential signing statements have gotten very little media attention. They are, however, highly important documents that define how the President interprets the laws he signs. Presidents use such statements to protects the prerogative of their office and ensure control over the executive branch functions.

Presidents also -- since Reagan -- have used such statements to create a kind of alternative legislative history. Attorney General Ed Meese explained in 1986 that:

To make sure that the President's own understanding of what's in a bill is the same . . . is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.

The alternative legislative history would, according to Dr. Christopher S. Kelley, professor of political science at the Miami University at Oxford, Ohio, "contain certain policy or principles that the administration had lost in its negotiations" with Congress.

The Supreme Court has paid close attention to presidential signing statements. Indeed, in two important decisions -- the Chadha and Bowsher decisions - the Court relied in part on president signing statements in interpreting laws. Other federal courts, sources show, have taken note of them too.

President Bush has used presidential signing statements more than any previous president. From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times. It is important, therefore, to understand what this doctrine means.

What Does the Administration Mean When It Refers to the "Unitary Executive"?

Dr. Kelley notes that the unitary executive doctrine arose as the result of the twin circumstances of Vietnam and Watergate. Kelley asserts that "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," which resulted in a congressional assault on presidential prerogatives.

For example, consider the Foreign Intelligence Surveillance Act (FISA) which Bush evaded when authorizing the NSA to tap without warrants -- even those issued by the FISA court. FISA was enacted after the fall of Nixon with the precise intention of curbing unchecked executive branch surveillance. (Indeed, Nixon's improper use of domestic surveillance was included in Article 2 paragraph (2) of the impeachment articles against him.)

According to Kelley, these congressional limits on the presidency, in turn, led "some very creative people" in the White House and the Department of Justice's Office of Legal Counsel (OLC) to fight back, in an attempt to foil or blunt these limits. In their view, these laws were legislative attempts to strip the president of his rightful powers. Prominent among those in the movement to preserve presidential power and champion the unitary executive doctrine were the founding members of the Federalist Society, nearly all of whom worked in the Nixon, Ford, and Reagan White Houses.

The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

The Unitary Executive Versus Judicial Supremacy

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 v. 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."

Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the "Take Care clause" to preserve, protect, and defend the Constitution and to "take care" that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush's recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush's oath of office, as well.

After all, can it be possible that that oath means that the President must uphold the Constitution only as he construes it - and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn't like - even though they were validly passed by Congress and signed into law by him?

Analyzing Bush's Disturbing Signing Statement for the McCain Anti-Torture Bill

Let's take a close look at Bush's most recent signing statement, on the torture bill. It says:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

In this signing statement, Bush asserts not only his authority to internally supervise the "unitary executive branch," but also his power as Commander-in-Chief, as the basis for his interpretation of the law -- which observers have noted allows Bush to create a loophole to permit the use of torture when he wants.

Clearly, Bush believes he can ignore the intentions of Congress. Not only that but by this statement, he has evinced his intent to do so, if he so chooses.

On top of this, Bush asserts that the law must be consistent with "constitutional limitations on judicial power." But what about presidential power? Does Bush see any constitutional or statutory limitations on that? And does this mean that Bush will ignore the courts, too, if he chooses - as he attempted, recently, to do in the Padilla case?

The Unitary Executive Doctrine Violates the Separation of Powers

As Findlaw columnist Edward Lazarus recently showed, the President does not have unlimited executive authority, not even as Commander-in-Chief of the military. Our government was purposely created with power split between three branches, not concentrated in one.

Separation of powers, then, is not simply a talisman: It is the foundation of our system. James Madison wrote in The Federalist Papers, No. 47, that:

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.

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.

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.

Thomas Paine wrote in Common Sense:

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.

The unitary executive doctrine conflicts with Paine's principle - one that is fundamental to our constitutional system. If Bush can ignore or evade laws, then the law is no longer king. Americans need to decide whether we are still a country of laws - and if we are, we need to decide whether a President who has determined to ignore or evade the law has not acted in a manner contrary to his trust as President and subversive of constitutional government.


Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law. Her book, ARCHETYPES FOR WRITERS, about the characterization method she developed and taught at the New School University, will be out in 2006. She can be reached at jvbxyz@earthlink.net.

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