I know there's been a good bit of blog talk about the "unitary executive".
But a recent piece by Jennifer Van Bergen should be required reading for anybody not yet floored by the implications of George Bush's thinking in this area. I don't care if I get a single comment -- just make sure you bookmark her piece for later reading.
The column points out something that very rarely receives media coverage: on many occasions when W has signed a law, he has submitted alongside it a separate "presidential signing", affirming nothing less than tyrannical power for the Executive.
As Van Bergen points out:
Bush has used presidential "signing statements" - statements issued by the President upon signing a bill into law -- to expand his power. Each of his signing statements says that he will interpret the law in question "in a manner consistent with his constitutional authority to supervise the unitary executive branch."
Now, other presidents have issued signing statements in the past, but not with same goal in mind, it seems.
From the piece:
President Bush has used presidential signing statements more than any previous president.
From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.
In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times. It is important, therefore, to understand what this doctrine means.
The Unitary Executive gets it backing from groups like the Federalist Society, and among other things, it's really a rejection of Marbury v. Madison. According to Van Bergen:
The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.
...
The coordinate construction theory counters the long-standing notion of "judicial supremacy," articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: "It is emphatically the province and duty of the judicial department to say what the law is."
The implications of running aggressively with this philosophy are breathtaking. And for an example, the signing statement after Congress passed the anti-torture bill should scare the fuck out of all Americans.
Again, from the piece:
Let's take a close look at Bush's most recent signing statement, on the torture bill.
It says:
The executive branch shall construe Title X in Division A 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
In this signing statement, Bush asserts not only his authority to internally supervise the "unitary executive branch," but also his power as Commander-in-Chief, as the basis for his interpretation of the law -- which observers have noted allows Bush to create a loophole to permit the use of torture when he wants.
Clearly, Bush believes he can ignore the intentions of Congress. Not only that but by this statement, he has evinced his intent to do so, if he so chooses.
On top of this, Bush asserts that the law must be consistent with "constitutional limitations on judicial power." But what about presidential power? Does Bush see any constitutional or statutory limitations on that? And does this mean that Bush will ignore the courts, too, if he chooses - as he attempted, recently, to do in the Padilla case?
This is a loud signal that apparently this president thinks he has the right to pre-empt BOTH Congress AND the Courts. ...What does it mean, "consistent with the constitutional limitations on the judicial power"? It can only be a declaration that the President will unilaterally decide what the lines are. ... If you ask me, it sounds like what an Islamic Cleric would say from his perch atop a theocracy... or what past Kings have claimed...