"What this has meant in practice is the president has controlled information within the executive branch despite the insistence of the Congress to obtain the information, and it has meant the president has influenced regulatory policy in a way that benefits his preferred political constituents."
http://www.users.muohio.edu/kelleycs/2004/09/unitary-executive.htmlBlogThis!
Media Watch
Our media was given constitutional protections in order to keep an informed public that would be responsible for maintaining a democratic society. Unfortunately, due to a number of pressures, our media is failing to meet this obligation. This blog will be a place for monitoring the media and for expressing new ideas for research.
Sunday, September 19, 2004
The Unitary Executive
This past August 5, President Bush signed into law the “Department of Defense Appropriations Act” for 2005. In his statement that accompanied the bill, the President took issue with a section that required him to integrate foreign intelligence information in response to the recommendations made by the 9/11 committee. President Bush wrote that he would construe the section
… in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.
What is noteworthy about this statement is the use of the term, the unitary executive branch. Through 2003, the President has employed this particular term—the “unitary executive”—59 times. He has used it as parts of statements to bills he is signing into law, as parts of executive orders, and to respond to congressional resolutions that do not carry the force of law. President Bush is also the first president to cite this particular term. While the media and indeed most presidency scholars have overlooked its significance, I contend it is important that we understand what the President means by unitary executive and why it carries important political implications. The particular term unitary executive finds its origin in the legal team assembled in the Reagan and Bush I Justice Departments and White House Counsels Office. It draws largely upon the writing of Alexander Hamilton, who advocated in Federalist 70 for energy in the executive. The legal advisors to Presidents Reagan and Bush I pushed for a vigorous defense of presidential prerogatives, and upon leaving their public positions, they mostly took up residence in conservative law schools such as Pepperdine and Northwestern University, as well as in conservative think tanks such as the Heritage Foundation and associational organizations such as The Federalist Society. It is from these positions that many of these former presidential advisors have continued to write and advocate for a theory of raw and aggressive constitutionally-driven presidential power. The unitary executive thesis rests upon the “Oath” and the “Take Care” clauses of Article II of the Constitution. In the first, the president upholds an oath to defend the Constitution, which has meant that a president is not obligated to defend or enforce sections of law that he determines, independently, violate the Constitution of the United States. For example, in 1986 Attorney General Ed Meese spoke at Tulane University in which he argued that “constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government.” This idea was echoed by Justice Scalia, in a 1991 concurring decision in which he wrote:
Thus, it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws,… or even to disregard them when they are unconstitutional. The second enables the president to insure control over the deliberative process within the executive branch and to exercise a great deal of influence over the vast administrative state, even to the independent regulatory agencies and commissions. To the unitary executive thesis, since the president is the only nationally elected political figure, he is accountable for the way in which policies are made, and thus he should be given control to insure all policies conform to the wishes of his national constituency. What this has meant in practice is the president has controlled information within the executive branch despite the insistence of the Congress to obtain the information, and it has meant the president has influenced regulatory policy in a way that benefits his preferred political constituents.
Hence when President Bush uses the term “unitary executive branch,” he is vigorously advocating an expansive form of presidential power.