Tuesday, February 18, 2014
Remember that thing called the Unitary Executive Theory, Republicans? Obviously not.
I'm amused by all the sturm und drang these days over executive overreach coming from the Republicans. Needless to say their crocodile tears are just a little bit hard to believe in light of this:
The unitary executive theory "asserts that all executive authority must be in the President’s hands, without exception."
President George W. Bush "has been asserting from the outset of his presidency" that 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."
According to "Dr. Christopher Kelley, a professor in the Department of Political Sciences at Miami University, as of April 2005, President Bush had used the doctrine 95 times when signing legislation into law, issuing an executive order, or responding to a congressional resolution."
"The President announced in these signings that he would construe provisions in a manner consistent with his 'constitutional authority to supervise the unitary executive branch.' While the President clearly has the authority to supervise the executive branch, it is unclear how far he might construe this authority under the unitary executive theory."
Bush administration "Fourth Branch" of government?
In June 2007, Vice President Dick Cheney claimed that he is neither a member of the executive branch of the U.S. government, nor required to comply with executive orders issued by President George W. Bush. In turn, President Bush—consistent with his claim that presidential power "must be unilateral, and unchecked"—also claims that he is not required to comply, as neither the president nor the vice president are "agencies" of the executive branch.
Since 2004, Cheney's office has refused to "allow" the Information Security Oversight Office (ISOO), "a department within the National Archives, to conduct an on-site inspection of how classified material is handled there, as it is authorized to do under an executive order issued by President Bush." Additionally, Cheney "prevented his office records from going to the National Archives, as required by federal law, according to House Oversight and Government Reform Committee Chairman Henry Waxman (D-Calif.)", who is "now challenging the legality and rationale behind Cheney's decision in a letter sent to the vice president" on June 21, 2007. Waxman also said that Cheney's office "stopped supplying data to the Information Security Oversight Office on its classification and declassification procedures in 2003."
Following a threat by Rep. Rahm Emanuel (D-Ill.) to defund "$4.8 million in executive-branch funding", "senior administration officials" told The Politico Cheney's office "will not pursue the argument that it is separate from the executive branch ... Two senior Republican officials, speaking on condition of anonymity, said that the rationale had been the view of the vice president’s lawyers, not Cheney himself."
Emanuel said the defunding "vote is still planned, and said the new position means the vice president needs to comply with National Archives requirements."
Cheney and Addington
Jan Frel wrote in October 28, 2005, AlterNet that Bush had, however, used this "unitary logic, including [in] many of his ill-fated choices relating to torture and the Geneva Conventions."
"And who was the author of the infamous 'torture memo?'," Frel asked? It was David S. Addington, chief of staff to Vice President Dick Cheney since October 2005 and Cheney's counsel since 2001, who "believes in the Unitary Executive theory. If you guessed that this meant the power of one CEO who decides liberty and justice for all, you wouldn't be far off," Frel wrote.
Addington was the "vice president's point man," Washington Post reporter Dana Milbank wrote October 11, 2004.
"Cheney has tried to increase executive power with a series of bold actions -- some so audacious that even conservatives on the Supreme Court sympathetic to Cheney's view have rejected them as overreaching," Milbank wrote.
News Release: "President Signs Justice Approps Authorization Act," Statement by the President, November 4, 2002: "The executive branch shall construe section 530D of title 28, and related provisions in section 202 of the Act, in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."
News Release: "President's Statement on H.R. 199, the 'USA PATRIOT Improvement and Reauthorization Act of 2005'," March 9, 2006: "The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."
"Presidential signing statements: Similar to the line-item veto is the presidential signing statement, in which the President signs a bill but also specifies which parts of a bill he or she actually intends to enforce.
"Until the Reagan administration, only 75 signing statements had ever been issued."
Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton "issued a total of 247 signing statements."
"President George W. Bush alone has issued 130 signing statements, which tend to be more sweeping in scope than those of his predecessors."
In July 2006, Sen. Arlen Specter filed legislation that would allow a chamber of Congress to file a lawsuit to determine the constitutionality of presidential signing statements.
Now, I certainly have big problems with the Obama administration's approach to civil liberties and the "commander in chief" powers. In many respects, it's taken those Bush directives and run with them. So, if the Republicans have decided to see the light on this abuse of power, I welcome them to the land of the sane.
Unfortunately, most of them don't care at all about any of that. Their handwringing about presidential overreach is all about the president using his executive power as the head of the domestic agencies. Which is as normal standard operating procedure as it gets. This "constitutional" issue is not about usurping the Bill of Rights (well, except for the 2nd Amendment which is actually one of the Biblical commandments so it's different.) The "constitutional" issue they're wringing their hands over is whether or not the Executive Branch has regulatory power.
Here's their list of things that they find to be impeachable (if not literally, then figuratively):
Forty-three Republicans have co-sponsored the resolution since Obama's State of the Union address, where he threatened to enact policies if Congress didn't act.
The Stop This Overreaching Presidency (STOP) measure, introduced by Rep. Tom Rice (R-S.C.), now has 104 co-sponsors, including Senate GOP hopeful Reps. Jack Kingston (Ga.), James Lankford (Okla.), Steve Stockman (Texas), Paul Broun (Ga.), Steve Daines (Mont.) and Phil Gingrey (Ga.).
In an interview with The Hill, Rice explained the STOP resolution is aimed at reversing Obama's delay of the employer mandate, enactment of the Dream Act, extension of "substandard" health insurance plans and ending work requirements for welfare.
(As if they really want that employer mandate or care about "substandard" insurance plans ...)
These things are all well within the province of the executive branch and can easily be reversed once the Republicans get a majority of the people of the United States to put it back into their hands. In the meantime, regulations and interpretations of how the law the law is to be administered is in the hands of this equal branch of government. Someone could file a lawsuit and get the other branch to weigh in. But there is nothing unprecedented or particularly aggressive in the administration's use of its power in these matters.
I just can't get over people who think that ending work requirements for welfare is more of a power grab than taking on the right to assassinate American citizens or collect and store communications of every person in the world just in case they might want to use it someday. But that's the difference between civil libertarians and libertarian/conservatives. When push comes to shove their top priority is always the protection of their bank accounts over anyone's individual freedom.
That's why most libertarians vote for Republicans, a Party which has about five elected officials who really give a damn about the Bill of Rights. But they all care about low taxes and keeping the poor in their place and that's what rally matters.
digby 2/18/2014 10:30:00 AM