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View Diary: What A "Unitary Executive" Means - President As King (243 comments)

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  •  Name 1 case that has expressly... (none)
    held that there is such a thing as a "unitary executive."  Hell, name a group of justices who have recognized the concept.  As I understand it, Thomas was the only one who did so in Hamdi.

    You're giving this claim far more credit than it deserves.

    Some men see things as they are and ask why. I see things that never were and ask why not?

    by RFK Lives on Tue Jan 10, 2006 at 11:36:30 AM PST

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    •  You miss my point. (none)
      I wasn't saying anything about whether the view has credit, only that it is remarkably durable - and that despite having been apparently defeated as often as it has.
      •  OK, so it wasn't created out of whole cloth... (none)
        it has merely been totally discredited for over 200 years of constitutional jurisprudence.  It's a relief to know that, instead of advocating a theory created out of whole cloth, Scalito advocates a theory that has been totally discredited.

        Some men see things as they are and ask why. I see things that never were and ask why not?

        by RFK Lives on Tue Jan 10, 2006 at 11:55:52 AM PST

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    •  One case (none)
      I read about yesterday did not propose the unitary executive notion, but did uphold the signing statement. It was discussed by Chris Kelley at Media Watch in his excellent essay on these issues called "Contextualizing the Signing Statement,"
      here
      The reporter on this story, Christopher Lee, writes that the "Reagan administration popularized the use of [the] signing statements and subsequent administrations continued the practice. (The courts have yet to give them much weight...)"

      First, I am not sure why he writes that the courts have "yet" to give them much weight since that is not the case. While it is true that some "textualists"--those judges who will only consider the language of the bill and nothing else (a view espoused by Justice Antonin Scalia), there are alternatively others who take a big picture approach to determine the intent behind ill-defined legislation (a view possessed by Justice Stephen Breyer). Despite this, there is great evidence to suggest that judges and justices have made use of the president's position or interpretation on a piece of law. For instance, FDR issued a statement with a military appropriations bill that contained a section that sought to punish a few members of the State Department by denying funds to pay their salaries. FDR took the position that this was a bill of attainder and ordered the Justice Department to refuse to defend it if challenged in court, which it was. In the decision United States v. Lovett (1946), the Supreme Court sided with FDR's position, even referring to the signing statement issued by the President.

      For those who may not know, a bill of attainder, which tries to single out individuals and punish them without a trial is specifically forbidden in Article 1 of the Constitution, so in plain English, what FDR was saying was that part of the bill he was signing was designed to punish some of his staff members in the State Department, which was illegal and should not be defended by his DOJ. The Supreme Court later agreed. Notice that what FDR was doing with his signing statement was trying to uphold people's rights under the Constitution. What GWB is doing with his is to violate people's rights under the Constitution.  

      Further on, Kelley shows exactly when and how the signing statements became an important tool for changing the legislative intent during the Reagan administration with the help of Ed Meese, and, well, there you go, Samuel Alito. This became especially important to Reagan during his second term, when Congress was not so inclined to agree with him. Here is what he (and Meese, and Alito) did to Barney Frank:

      In signing the "Immigration Reform and Control Act, 1986," the Reagan administration took advantage of a section of the bill offered by Congressman Barney Frank that protected minorities from discriminate firings by "bigoted" employers. The section as Frank intended it placed the burden of proof on the employer to provide documentation showing just cause for the firing. After the bill emerged from conference, the "Frank Amendment" was still in place, but the meaning was stripped after the Senate would not budge on the burden of proof. When Reagan issued the signing statement, he instructed executive branch agencies charged with executing the law to place the burden of proof upon those who were fired, in direct contradiction to the intent of its author, Barney Frank. Of course this new interpretation aided the business community in the United States.

      BTW, Media Watch now says Kennedy got the right stuff in on "unitary executive" when questioning Alito this morning. It's not clear that Alito's answer was much help, though.  

      "Outside of a dog, a man's best friend is a book. Inside of a dog, it's too dark to read"--Groucho Marx

      by martyc35 on Tue Jan 10, 2006 at 02:22:18 PM PST

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