A Unitary Executive will make the Executive Branch a Behemoth

[ck4829]

A Unitary Executive will make the Executive Branch a Behemoth

The Unitary Executive Theory will increase Bush's power exponentially. If Republicans support "Small Government" like they say they do, then they will oppose Alito and the Bush Administration.

"The unitary executive theory contends that this language vests all of the executive power of the United States in the person of the President; while the President may delegate day-to-day control to other executive agencies in the executive branch, the President is none-the-less the leader of - and therefore responsible for - all agencies operating under him. Consequentially, no part of the branch can sue another part because "the executive cannot sue himself"; moreover, if the judicial branch were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers."

http://en.wikipedia.org/wiki/Unitary_Executive#The_theory_defined

If the Unitary Executive Theory comes to fruition, that would mean that the President will become like the Commander-In-Chief, having Supreme Control, over the following:

Department of Agriculture
* Agricultural Marketing Service (AMS)
* Agricultural Research Service (ARS)
* Animal and Plant Health Inspection Service (APHIS)
* Center for Nutrition Policy and Promotion (CNPP)
* Cooperative State Research, Education, and Extension Service (CREES)
* Economic Research Service (ERS)
* Farm Service Agency (FSA)
* Federal Crop Insurance Corporation (FCIC)
* Food and Nutrition Service (FNS)
* Food Safety and Inspection Service (FSIS)
* Foreign Agricultural Service (FAS)
* Forest Service (FS)
* Grain Inspection, Packers and Stockyards Administration (GIPSA)
* National Agricultural Library (NAL)
* National Agricultural Statistics Service (NASS)
* Natural Resources Conservation Service (NRCS)
* Risk Management Agency (RMA)
* Rural Development (RD)

Department of Commerce
* Bureau of Industry and Security (BIS)
* Economics and Statistics Administration (ESA)
o Bureau of Economic Analysis (BEA)
o Bureau of the Census
* Economic Development Administration (EDA)
* International Trade Administration (ITA)
* Minority Business Development Agency (MBDA)
* National Oceanic and Atmospheric Administration (NOAA)
o National Weather Service (NWS)
o National Oceanic Service (NOS)
o National Geodetic Survey (NGS)
o National Environmental Satellite Data and Information Service (NESDIS)
* National Telecommunications and Information Administration (NTIA)
* Patent and Trademark Office (PTO)
* Technology Administration (TA)
o National Institute of Standards and Technology (NIST)
o National Technical Information Service (NTIS)
o Office of Technology Policy (OTP)

Department of Defense
He already has Supreme Control over this Department

Department of Education
* Advisory Committee on Student Financial Assistance
* Education Resources Information Center (ERIC)
* National Assessment of Educational Progress (NAEP)
* Office of Educational Research and Improvement
* Office of Elementary and Secondary Education (OESE)
* Office of English Language Acquisition, Language Enhancement and Academic Achievement for Limited English Proficient Students
* Office of Federal Student Aid
* Office of Indian Education
* Office of Migrant Education
* Office of Postsecondary Education
* Office of Special Educational and Rehabilitation Services
* Office of Vocational and Adult Education

Department of Energy
* Energy Information Administration (EIA)
* Federal Energy Regulatory Commission (FERC)
* National Laboratories & Technology Centers:
o Albany Research Center
o Ames Laboratory
o Argonne National Laboratory
o Argonne National Laboratory (West) (now part of Idaho National Laboratory)
o Brookhaven National Laboratory
o Center for Functional Nanomaterials (under design or construction)
o Center for Integrated Nanotechnologies (under design or construction)
o Center for Nanophase Materials Sciences (under design or construction)
o Center for Nanoscale Materials (under design or construction)
o Fermi National Accelerator Laboratory
o Idaho National Engineering Laboratory
o Lawrence Berkeley National Laboratory
o Lawrence Livermore National Laboratory
o Los Alamos National Laboratory
o Molecular Foundry (under design or construction)
o National Energy Technology Laboratory
o National Petroleum Technology Office
o National Renewable Energy Laboratory
o New Brunswick Laboratory
o Oak Ridge National Laboratory
o Pacific Northwest National Laboratory
o Princeton Plasma Physics Laboratory
o Radiological & Environmental Sciences Laboratory
o Sandia National Laboratories
o Savannah River Ecology Laboratory
o Stanford Linear Accelerator Center
o Thomas Jefferson National Accelerator
o Yucca Mountain
* National Nuclear Security Administration (NNSA)
* Power Marketing Administrations:
o Bonneville Power Administration
o Southeastern Power Administration
o Southwestern Power Administration
o Western Area Power Administration

Department of Health and Human Services
* Administration on Aging (AoA)
* Agency for Healthcare Research and Quality (AHRQ)
* Agency for Toxic Substances and Disease Registry (ATSDR)
* Centers for Disease Control and Prevention (CDC)
* Centers for Medicare and Medicaid Services (CMS)
* Food and Drug Administration (FDA)
* Health Resources and Services Administration (HRSA)
* Indian Health Service (IHS)
* National Institutes of Health (NIH)
* Program Support Center (PSC)
* Substance Abuse and Mental Health Services Administration (SAMHSA)

Department of Homeland Security
* Coast Guard
* National Cyber Security Division
* Environmental Measurements Laboratory
* Immigration and Customs Enforcement (ICE)
* U.S. Citizenship and Immigration Services (USCIS)
* Customs and Border Protection
* Federal Emergency Management Agency (FEMA)
* Federal Law Enforcement Training Center (FLETC)
* United States Secret Service (USSS)
* Office of State and Local Government Coordination and Preparedness
* Transportation Security Administration (TSA)

Department of Housing and Urban Development
* Community Development Block Grants
* Office of Fair Housing and Equal Opportunity
* Federal Housing Administration (FHA)
* Government National Mortgage Association (GNMA, Ginnie Mae)
* Office of Policy Development and Research (Bridges to Work)
* Office of Public and Indian Housing (PIH)

Department of the Interior
* Bureau of Land Management (BLM)
* Bureau of Indian Affairs (BIA)
* Office of Surface Mining (OSM)
* Bureau Of Reclamation (USBR)
* Fish and Wildlife Service (FWS)
* Minerals Management Service (MMS)
* National Park Service (NPS)
* United States Geological Survey (USGS)
* Office of Insular Affairs

Department of Justice
* Antitrust Division
* Asset Forfeiture Program
* Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF / BATFE)
* Bureau of Justice Assistance
* Bureau of Justice Statistics
* Civil Division
* Civil Rights Division
* Community Capacity Development Office
* Community Oriented Policing Services (COPS)
* Community Relations Service
* Criminal Division
* Diversion Control Program
* Drug Enforcement Administration (DEA)
* Environment and Natural Resources Division
* Executive Office for Immigration Review
* Executive Office for U.S. Attorneys
* Executive Office for U.S. Trustees
* Federal Bureau of Investigation
* Federal Bureau of Prisons
* Foreign Claims Settlement Commission of the United States
* U.S. Citizenship and Immigration Services (USCIS)
* Bureau of Customs and Border Protection (BCBP)
* Bureau of Immigration and Customs Enforcement (ICE)
* Office of Immigration Statistics
* INTERPOL - U.S. National Central Bureau
* Justice Management Division
* Marshals Service
* National Crime Information Center
* National Criminal Justice Reference Service
* National Drug Intelligence Center
* National Institute of Corrections (FBOP)
* National Institute of Justice
* Office of the Federal Detention Trustee
* Office of the Inspector General
* Office of Intelligence Policy and Review
* Office of Intergovernmental and Public Liaison
* Office of Justice Programs (OJP)
* Office of Juvenile Justice and Delinquency Prevention
* Office of the Pardon Attorney
* Parole Commission
* Office of the Police Corps
* Office of Tribal Justice
* Office for Victims of Crime
* Office on Violence Against Women
* Solicitor General
* Tax Division
* U.S. Attorneys

Department of Labor
* Administrative Review Board (ARB)
* Benefits Review Board (BRB)
* Bureau of International Labor Affairs (ILAB)
* Bureau of Labor Statistics (BLS)
* Center for Faith-Based & Community Initiatives (CFBCI)
* Employees' Compensation Appeals Board (ECAB)
* Employment Standards Administration (ESA)
o Office of Federal Contract Compliance Programs (OFCCP)
o The Office of Labor-Management Standards (OLMS)
o Office of Workers' Compensation Programs (OWCP)
o Wage and Hour Division (WHD)
* Employment & Training Administration (ETA)
* Mine Safety & Health Administration (MSHA)
* Occupational Safety & Health Administration (OSHA)
* Employee Benefits Security Administration (EBSA)
* Veterans' Employment & Training Service (VETS)
* Women's Bureau (WB)

Department of State
* Bureau of Administration
* Bureau of African Affairs
* Bureau of Consular Affairs
* Bureau of Democracy, Human Rights, and Labor
o Periodic Report of the United States of America to the United Nations Committee Against Torture
* Bureau of Diplomatic Security
o Office of Foreign Missions
* Bureau of East Asian and Pacific Affairs
* Bureau of Economic and Business Affairs
* Bureau of Educational and Cultural Affairs
o Internet Access and Training Program
* Bureau of European and Eurasian Affairs
* Bureau of Human Resources
* Bureau of Information Resource Management
* Bureau of Intelligence and Research
* Bureau for International Narcotics and Law Enforcement Affairs
* Bureau of International Organization Affairs
* Bureau of International Security and Nonproliferation
* Bureau of Legislative Affairs
* Bureau of Near Eastern Affairs
* Bureau of Oceans and International Environmental and Scientific Affairs
* Bureau of Overseas Buildings Operations
* Bureau of Political-Military Affairs
* Bureau of Population, Refugees, and Migration
* Bureau of Public Affairs
* Bureau of Resource Management
* Bureau of South Asian Affairs
* Bureau of Verification, Compliance, and Implementation
* Bureau of Western Hemisphere Affairs
* Counterterrorism Office (which produces the Patterns of Global Terrorism report)
* National Foreign Affairs Training Center (former Foreign Service Institute)
* Office of International Information Programs
* Office of the Legal Adviser
* Office of Management Policy
* Office of Protocol
* Office of the Science and Technology Adviser
* Office to Monitor and Combat Trafficking in Persons
* Office of War Crimes Issues
* US Department of Global Anti-semitism

Department of Transportation
* Federal Aviation Administration (FAA)
* Federal Highway Administration (FHWA)
* Federal Railroad Administration (FRA)
* Federal Transit Administration (FTA)
* Maritime Administration (MARAD)
* Federal Motor Carrier Safety Administration (FMCSA)
* National Highway Traffic Safety Administration (NHTSA)
* Research and Innovative Technology Administration (RITA)
* Pipeline and Hazardous Materials Safety Administration (PHMSA)
* Saint Lawrence Seaway Development Corporation (SLSDC)
* Surface Transportation Board (STB)

Department of the Treasury
* Alcohol and Tobacco Tax and Trade Bureau (TTB)
* Bureau of Engraving and Printing (BEP)
* Bureau of the Public Debt
* Community Development Financial Institution Fund (CDFI)
* Financial Crimes Enforcement Network (FinCEN)
* Financial Management Service (FMS)
* Inspector General
* Treasury Inspector General for Tax Administration (TIGTA)
* Internal Revenue Service (IRS)
* Office of the Comptroller of the Currency (OCC)
* Office of Thrift Supervision (OTS)
* Office of the Secretary
o Domestic Finance
o Economic Policy
o General Counsel
o Information and Technology Management
o International Affairs
o Management
o Public Affairs
o Tax Policy
o Terrorism and Financial Intelligence (TFI)
o Treasurer of the United States
* United States Mint

Department of Veterans Affairs
* Veterans Benefits Administration (VBA)
* Veterans Health Administration (VHA)
* National Cemetery Administration (NCA)

[annabanana]

1. So THAT'S where B*sh is going to get his Army

to attack Iran...

huh....... problem solved I guess.

[leftstreet]

2. Holy Shit

Thanks for the post.

[DeBunk]

3. That's the point

The point is to gut those agencies.

The unitary executive is a conservative plan to do away with agencies that get in their way. The EPA and the SEC are first on the list.

[DeBunk]

5. Look at mine safety.

OSHA is next on the list.

Unitary executive means no congressional oversight over these agencies. It means the executive can gut them, let them wither on the vine and remove them as a factor.

Look at fema.

[Phoebe Loosinhouse]

4. The concept of the Unitary Executive has a prototype

"L'etat c'est moi"

http://www.chateauversailles.fr/en/220_Louis_XIV_An_Absolute_Monarch.php

This all seems strangely relevant.

[leftstreet]

6. Monarch by Divine Right

:puke:

[Hosnon]

7. Actually, Constitutional Theory in this country says that the powers of

the Executive in the foreign arena are derived directly from the Crown, and thus God...

[Hosnon]

8. I may be off here (not well versed) but aren't the different departments

created by the Legislature? Thus that branch is delegating some authority to the Executive to "make laws" in the form of regulations, etc.

If that is the case, it seems the Legislature could, and should have if not, withhold some of the power so that it was not an absolute delegation.

[DeBunk]

9. That's exactly why they are pushing this approach

Basically, the legislature passes laws (in this case creating these departments), and the executive upholds the laws (in Bush's case...not so much).

What unitary executive is about is a way around the legislation of these departments. It makes the departments not independant. It allows the executive to gut the departments without congressional oversight.

[mom cat]

10. Holy Shit.

[DeBunk]

11. My sentiments exactly

There is a silver lining, if you are a democratic politician.

Americans have come to expect standards. Occupational safety standards, clean air standards, ethics in the market...etc...

If the conservatives succeed in removing these regulatory agencies the democrats will be able to bludgeon them for the next decades with it. Just like conservatives boast they have won 7 of the last 10 presidential elections because of the "liberal" court.

But, it leaves us regular people in the lurch.

[mmonk]

12. Seems to me all their plans are still on schedule.

Norquist + Neocons = the path to hell.

[DeBunk]

13. I agree

It's full steam ahead on the Republican agenda. Short of gutting SSI they are getting everything they wanted.

[durablend]

17. Can he still do that (gut SS/SSI)?

Once he has full control, can he just wave a pen and make it go "poof"?

Not as if they're going to need the votes if they don't plan on leaving office EVER

[ck4829]

14. Self-Kick for Today

It was pretty late when I wrote it last night.

[centristo]

15. and then bush apologists get so outraged

that Bush gets blamed for everything wrong that happens. You can't have it both ways fellas.

[many a good man]

16. This is exactly what our Founding Fathers warned us against

"The essential principles of our Government... form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety." --1st Inaugural Address, 1801.

[Wordie]

18. Another great article on the unitary executive theory & its application:

The part I quote here is just a taste of a longer article that's very good:

Founding Fathers

Alito has argued that a powerful executive is what the Founding Fathers always intended. In a speech in 2000, he said that when the U.S. Constitution was drafted in 1787, the framers “saw the unitary executive as necessary to balance the huge power of the legislature and the factions that may gain control of it.”

Scholars, however, have disputed Alito’s historical argument by noting that the framers worried most about excessive executive powers, like those of a king, and devised a complex system of checks and balances with the Legislature in the preeminent position to limit the President’s powers.

Yet, with Alito seemingly advancing toward confirmation, the next question may be how many other justices on the nine-member Supreme Court agree with him about the “unitary executive.”

For one, Chief Justice John Roberts, Bush’s other appointee to the Supreme Court, has been a longtime supporter of broad presidential powers.

During the Reagan administration in 1983, Roberts said it was time to “reconsider the existence” of independent regulatory agencies, such as the Federal Communications Commission and the Federal Trade Commission, and to “take action to bring them back within the Executive Branch.”

Roberts called these agencies a “constitutional anomaly,” which should be rectified by putting them under direct presidential control.

Roberts’s deference to presidential power has been a strand that has run through his entire career – as special assistant to Reagan’s attorney general, as a legal strategist for Reagan’s White House counsel, as a top deputy to George H.W. Bush’s solicitor general Kenneth W. Starr, and as a federal appeals court judge accepting George W. Bush’s right to deny due-process rights to anyone deemed an “enemy combatant.”

Another “unitary executive” vote is likely to come from Justice Antonin Scalia, who is considered the court’s most scholarly right-wing member. He has been associated with the drive to expand presidential powers since the mid-1970s when he headed President Gerald Ford’s Office of Legal Counsel and served as assistant attorney general.

Justice Clarence Thomas would appear to be a reliable fourth vote, having cited the theory of the “unitary executive” in arguing in 2004 that the Supreme Court had no right to intervene in granting legal protections to detainees at Guantanamo Bay.

http://www.consortiumnews.com/2006/011106.html

[Wordie]

19. And here's something from the WSJ, with concerns about Alito and the UET

(unitary executive theory)

In the News - Full Article
January 10, 2006
Wall Street Journal

JUDGE ALITO'S VIEW OF THE PRESIDENCY: EXPANSIVE POWERS
Court Pick Endorsed Theory of Far-Reaching Authority; Tenet of Bush White House

A Debate Over Terror Tactics

By Jess Bravin

In November 2000, while the nation fixated on whether George W. Bush or Al Gore would emerge victorious from the electoral confusion in Florida, Judge Samuel Alito laid out his view of what powers the future president would hold.

The Constitution "makes the president the head of the executive branch, but it does more than that," Judge Alito said in a speech to the Federalist Society at Washington's Mayflower Hotel. "The president has not just some executive powers, but the executive power -- the whole thing."

Judge Alito was describing the theory of the "unitary executive," an expansive view of presidential powers that he and his colleagues set forth while working in the Office of Legal Counsel of the Reagan Justice Department. Although the Supreme Court has not always agreed, he said in his speech, "I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."

President Bush has repeatedly invoked this theory as he asserts broad presidential powers to fight the war on terror. Now the president's approach to executive power -- including his authorization of a domestic surveillance program -- is drawing criticism in Congress. Disputes over some White House policies may ultimately be resolved by federal courts. The record of Judge Alito, who is Mr. Bush's latest nominee to the Supreme Court, suggests he could support the president's viewpoint.

Amid controversy over the domestic wiretapping program and the detention of enemy combatants, Judge Alito is likely to be questioned extensively about his views on presidential power during his confirmation hearings, scheduled to open Jan. 9. In separate letters to Judge Alito last month, the Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, and the ranking Democrat, Patrick Leahy of Vermont, both indicated an intention to explore the topic. (See related article.)

In an interview yesterday evening, Assistant Attorney General Rachel Brand, speaking for the Bush administration, cautioned against drawing conclusions from Judge Alito's 2000 speech. "There's no way to say how he would rule" on executive-power issues that might come before the court, she said.

In 2000, Judge Alito referred to the unitary-executive theory of presidential power as "the gospel according to OLC," a reference to his office in the Reagan Justice Department. The theory has since become the foundation for the current administration's assertions that it has the power to interpret treaties, determine the fate of enemy prisoners, and jail U.S. citizens as enemy combatants without charging them.

Thus far, the theory has fared unevenly in federal courts. Bush administration officials have criticized some court rulings and pledged to appoint new judges more sympathetic to executive-power claims.

The judiciary had a "disturbing tendency...to inject itself into areas of executive action originally assigned to the discretion of the president," Attorney General John Ashcroft said in a November 2004 speech to the Federalist Society, a conservative lawyers' network. "These encroachments include some of the most fundamental aspects of the president's conduct of the war on terrorism," he said, and they impede "the tremendous energy and resolve of President Bush."

While serving on the District of Columbia Circuit Court of Appeals, the president's first Supreme Court appointee, Chief Justice John Roberts, joined a June 2005 decision that gave Mr. Bush broad authority to try foreigners before military commissions. The Supreme Court has agreed to hear an appeal, and if Judge Alito is confirmed, he will help decide the case.

In written statements issued when he signs legislation, Mr. Bush routinely cites his authority to "supervise the unitary executive branch" to disregard bill provisions he considers objectionable. A statement Mr. Bush issued on Dec. 30 when he signed Sen. John McCain's antitorture amendment, for example, said in part that the executive branch "shall construe" a portion 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." The statement raised questions among critics of the administration's policies about the extent to which the White House considers itself bound by the legislation.

Open-Ended

Some supporters of unitary-executive theory argue that the White House has the constitutional power to remove officials of independent agencies such as the Federal Trade Commission if they disobey the president.

Article II of the Constitution says that "the executive power shall be vested in a president of the United States of America," but it doesn't precisely define that power. It says that the president shall be "commander in chief of the Army and the Navy," but separately assigns the power to declare war, raise armies and regulate the taking of prisoners to Congress. Advocates of the unitary-executive theory contend that the president's power is open-ended compared with that of Congress, noting that Article II doesn't expressly limit executive powers to those "herein granted."

"At its core, the unitary executive is the notion that the Constitution gives the president the executive power, and it includes the power to superintend and control subordinates in the executive branch," says Northwestern University law professor Steven Calabresi, who helped develop the theory in the Reagan Justice Department and has written extensively on its historical basis.

Adherents to the theory -- called unitarians -- reject the view that regulatory agencies should operate independent of political control. The White House should have final say over rules and decisions issued by the federal bureaucracy, they say.

But advocates differ on the degree of executive authority. Some believe only that Congress cannot create agencies or officers that operate outside the president's direction. Others contend the president has executive powers beyond those granted by Congress or listed in the Constitution.

Bush administration lawyers, in confidential memorandums, adopted this broader view after the Sept. 11, 2001, terrorist attacks. They contended that the "unitary" nature of presidential power over national security meant Mr. Bush could not be constrained either by treaties or laws passed by Congress that governed treatment of enemy prisoners.

In a Sept. 25, 2001, advisory legal opinion prepared for the White House, John Yoo, then a Justice Department attorney, wrote: "The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch."

An August 2002 memorandum signed by Assistant Attorney General Jay Bybee advised that "even if an interrogation method arguably were to violate , the statute would be unconstitutional if it impermissibly encroached on the president's constitutional power to conduct a military campaign." President Bush has since appointed Mr. Bybee to a federal appeals court.

The Justice Department later withdrew that internal legal opinion, but it has not backed away from its theory on presidential power, which also underlies the domestic surveillance program and the detention of U.S. citizens as enemy combatants. In all three instances, the president has asserted an inherent power to take actions that critics say are contrary to specific laws -- respectively, the 1994 Torture Statute, the 1978 Foreign Intelligence Surveillance Act and the 1971 Non-Detention Act.

"If the theory were wrong, there would be no way the Bush administration's antiterrorism policies could be constitutionally justified," says Mr. Calabresi, co-chairman of the Federalist Society, which he co-founded in 1982. Although the theory is closely associated with many Federalist Society leaders, Mr. Calabresi stops short of fully endorsing the Bush administration's view. "They have pushed the envelope, and if I were a judge I am not at all sure I would uphold everything they have done, although I would probably uphold most of it."

'Hotly Debated'

Judge Alito, a Federalist Society member who currently sits on the Third U.S. Circuit Court of Appeals in Philadelphia, noted in his 2000 speech that as a judge, he had had few occasions to rule on presidential authority. He observed that "what the executive power encompasses has been very hotly debated."

He noted that "the Supreme Court has not exactly adopted the theory of the unitary executive," instead taking a "two-track approach." The high court has protected presidential powers specifically enumerated in the Constitution, such as the right to pardon convicts and to sign or veto bills, he said. "But when it's been confronted with an inroad on the general grant of executive power to the president, it has basically engaged in balancing" of competing interests, rather than deferring to the White House's assertion of authority.

IN ACTION

From Bush's Dec. 3, 2003 statement on signing the 21st Century Nanotechnology Research and Development Act:

"The executive branch shall implement these provisions in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President judges necessary and expedient."

Over the past 80 years, the Supreme Court has backed the president on some questions of executive power, but not on others. In the 1940s, for example, the court upheld several Roosevelt administration policies, including the internment of Japanese-Americans and the trial of German saboteurs before a secret military commission. But in the landmark 1952 steel seizure case, the court rejected President Truman's claim that as commander in chief, he could take possession of steel mills, then closed by strikes, to ensure production of arms for the Korean War. The opinion, by Justice Hugo Black, defined the president's commander-in-chief power narrowly, "even though 'theater of war,' " he wrote, may be "an expanding concept."

In 2004, the Supreme Court cited the steel seizure case to rule that prisoners at Guantanamo Bay, Cuba, and others the president designated as "enemy combatants" had the right to challenge their detentions in court. "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor, who Judge Alito has been nominated to succeed.

Supporters and opponents of expansive presidential powers disagree about the intent of the Constitution's framers. In his 2000 speech, Judge Alito argued that the framers "saw the unitary executive as necessary to balance the huge power of the legislature and the factions that may gain control of it."

Critics say the framers were concerned about the unchecked power of a king, who could act without regard to elected representatives. "Some people would argue that the whole point of the Revolution was not to have a king," says Michael Froomkin, a law professor at the University of Miami.

Roots in the 1970s

The current debate about presidential power has its roots in the 1970s, when Congress and courts responded to controversial and in some cases illegal practices of the Nixon White House. New laws curtailing presidential power were enacted. The Supreme Court ruled that newspapers could not be barred from publishing leaked classified documents on the Vietnam War, the attorney general could not wiretap suspected subversives without a warrant, and Mr. Nixon had to surrender transcripts of his secret White House tapes to a Watergate special prosecutor.

Lawyers working under Mr. Nixon's successor, Gerald Ford, "began looking at ways they could advance presidential powers in ways that wouldn't raise the alarm bells it did during the Nixon administration," says Christopher Kelley, a political scientist at Miami University in Oxford, Ohio. Leading that effort was Antonin Scalia, who headed the Ford administration's Office of Legal Counsel and today sits on the Supreme Court.

The push to extend presidential powers continued into the Reagan and George H.W. Bush administrations, in part to contend with Congress when it was controlled by Democrats. The Clinton administration asserted a similar authority over government agencies, particularly after Republicans took control of Congress in 1994.

In March, the current administration's efforts to further expand presidential authority may face another test at the Supreme Court. It has agreed to hear a challenge to the president's plan to try suspected foreign terrorists at Guantanamo before military commissions, a type of special court created by the president in which defendants have limited rights. At issue, among other things, is whether the Geneva Convention affords the Guantanamo prisoners further legal protections.

Last month, Congress approved legislation intended to protect prisoners, in part by providing them with limited rights to appeal. The administration is expected to cite that legislation in an effort to head off the Supreme Court review.

http://www.law.northwestern.edu/news/article_full.cfm?eventid=2372