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View Diary: Don't Fear The Unitary Executive Theory - v.2 (167 comments)

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  •  Well, you are mistaken in your false (4.00)
    assumptions and your diary is full of holes.  Alito has been right in the thick of the plotting to institutionalize these signing statements and usurping power from the legislative branch.

    Here's Prez rundown of SIGNING STATEMENTS.

    The Bush administration has issued over 500 constitutionally based signing statements since 2001. Constitutionally based signing statements are those in which the president refuses to defend or enforce provisions of law because he determines it to be unconstitutional.

    Alito is a strong proponent of unilateral presidential actions and the unitary executive theory.

    "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote.  He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

    This importance of this unitary executive theory seems to have evaded most of us.  Its use was captured and institutionalized by the Justice Department (underAttorney-General Edwin Meese) under Reagan.  

    A chilling example of the use of this unitary executive power by Reagan: need only look at how the Reagan administration used it to win back policy that was important for a key Reagan constituency --the business community.

    During the congressional battle over immigration reform in the 1980s, the Congress was able to hammer out a bill in 1986 that overhauled immigration law in the United States. One section of the bill, which was highly contentious, dealt with the firing of individuals and protection against discrimination. The section of the bill was added by Congressman Barney Frank (D MA) arguing that anyone who was let go because of
    discrimination could gain recourse through the federal courts. The burden of proof in the
    Frank provision was left to business to prove that a person was fired for reasons other than race, religion, ethnicity, personal handicap, or country of origin. However, in the Senate there was no such provision to the bill and when the bill went to conference, the Frank provision was left in but the definition of discrimination was stripped out.

    When the bill was sent to President Reagan, he defined discrimination in his signing statement in a way that shifted the burden of proof upon the employee who had been let go, something Frank protested as "intellectually dishonest" and as telling "the bigots how to be smart and evade the law."

    And, not to leave out a very important figure, David Addington, Vice-President Cheney's counsel.  We have been doing the ooyah shuffle to the tribulations of Scooter Libby, when the real power all along has been with Addington.

    ...Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president.


    In addition to Cheney, his chief counsel David Addington, who has been with Cheney since his days as Secretary of Defense, also is zealous in his pursuit of the unitary executive. Addington played the point man on the torture memo, has been a prime advocate of detaining suspects connected to terrorism without access to the courts, and
    has been vigorous in his defense of withholding information from Congress and the public.

    For instance, it was Addington who lead the charge to keep secret the details of the "Energy Task Force" formed in 2001, and the focus of a Supreme Court decision in 2004.

    Addington scrutinizes every page of the federal budget looking for anything that might infringe upon presidential power (discussed below), and meets daily "with [the] White House counsel" to discuss the varied ways in which legislation may infringe upon the authority of the president.

    The unitary executive has mostly been championed by the founding members of the "Federalist Society," a group of conservative lawyers who nearly all worked in the Nixon, Ford, and Reagan White Houses and who understood the type of political climate the president operated in and understood what it took in order to succeed. Thus, the individuals who have written the most prolifically towards the unitary executive theory were also former members of the Reagan legal team--Calabresi, Ed Meese, Michael Stokes Paulsen, Douglas Kmiec, and Johnathan Yoo, to name a few.

    It seems the Meese Justice Department institutionalized the unitary executive power in 1986.  From where did this inherent power of the unitary executive come for the Justice Department to enable the presidency to ascend to such power-invoking heights?  From what well did this power spring?

    Alito is deeply imbedded with those power-usurpers in that Justice Department.

    Also, note that the use of the unitary executive is dependant on the OIRA (Office of Information and Regulatory Affairs).  In January 2005, John D. Graham was appointed Administrator of the OIRA by bush and was hotly contested by "scientists, doctors, public health professionals and environmental, consumer and labor organizations, as well as many of his own academic peers, who questioned his science and his ethical practices."  John Graham provides more than just the regulatory "prop" for bush and his unitary executive privilege.

    ...He serves as the nation's regulatory gatekeeper, passing judgment on all major national health, safety, and environmental standards. Acting as "a sort of 'regulatory czar' who can block any new regulation, whether arsenic standards for drinking water, worker-protection rules or the public's right to know about toxic chemicals," Graham's position is a crucial one for overseeing essential consumer protections.

    He has further extended his influence by appropriating the authority to carry out laws entrusted by Congress to heads of agencies such as the EPA.

    So, we see the tentacles of this overreaching power of the unitary executive and its OIRA gatekeeper.

    His application of cost-benefit analyses to industrial pollution is controversial and tends to favor polluters by systematically overstating the costs of regulation to industry and underestimating the cost to those affected. As founding director of the Harvard Center for Risk Analysis, his acceptance of funding from America's largest corporate polluters, including Dow Chemical, DuPont, Monsanto, Alcoa, Exxon, General Electric and General Motors, was considered a conflict of interest. No environmental or consumer group is represented on the center's advisory board.

    Graham has argued that smog protects people from too much sunlight, dioxin might reduce cancer in some cases, safe housing codes can kill people and pesticides on foods are a trivial problem that does not constitute a health hazard. In addition, "he claims that our choice of environmental regulations contributes to the death of 60,000 people under a theory he calls'statistical murder'.")

    A letter signed by 53 academics from across the country opposed Graham's nomination and questioned his credibility and scientific integrity. They stated: "Professor Graham's controversial risk management methodology discounts the real risks of well-documented pollutants such as dioxin and benzene, and makes use of extreme and highly-disputed economic assumptions. Professor Graham has shown his willingness to over-ride health, safety, environmental, civil rights, and other social goals in applying crude cost-benefit tools far past the point at which they can be justified by existing scientific and economic data... Moreover, Professor Graham has publicly rendered many opinions on complex and imperfectly understood scientific phenomena, such as the etiology of cancer and other diseases, despite his lack of a degree in the hard sciences. " It concluded: "Graham's work has, overall, demonstrated a remarkable congruency with the interests of regulated industries. In contrast, the position at OIRA requires a much more even-handed approach."

    <div style="color: #a00000;"> Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshal

    by bronte17 on Sat Jan 28, 2006 at 12:15:03 AM PST

    [ Parent ]

    •  Loopholes (none)
      Gotta close a few of those loopholes.

      Need a new ammendment:

      -The Constitutionality of no law shall be interpreted by the Executive.

      -The Legislative intent shall be adhered to and any clarification shall be made in the Legislature.

      Not that anyone would go for that.

      •  Not a bad idea (none)
        If people really are concerned about whether courts should look to presidential signing statements when they interpret an ambiguous statute, then maybe a statute or even a Constitutional amendment forbidding them from doing so is appropriate.

        But let's keep a perspective. The importance of this whole issue of signing statements is this: what should courts consider when they try to figure out what an ambiguous statute means? Should they limit themselves to the statutory language, as Justice Scalia advocates, or should they look at things that might cast light on the motivations of the legislature in enacting the law?

        What the signing statement proponents say is that, "look, the President was involved in shaping this bill, even if only indirectly, because it wouldn't have become law without his signature so the Congressmen who wrote the bill  had to consider his likely political response to it. So why can't the courts consider what the President thinks the law means when they try to figure out its meaning?"

        Looked at in this way, the idea is not some big threat to the Republic. And bear in mind, too, that, though used much more often by this administration than its predecessors, many other Presidents have used signing statements. I suspect that most, if not all, did so in an attempt to influence a judicial interpretation of the law.

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