The Neofascist Unitary Executive Doctrine

http://writ.findlaw.com/commentary/20060109_bergen.html
Franklin’s Focus 1/12/06

The Neofascist Unitary Executive Doctrine

Before I briefly comment on this doctrine, I want to add to yesterday's somewhat intemperate rant. I neglected to tell you that the moniker 'Oinkito' did not come into to use as a result of his membership in a sexist Princeton alumni group. The term began to be used by certain feminists after Judge Alito ruled that a woman can be compelled to obtain her husband's permission. As applied in some cases, women were subsequently compelled to get the permission of husbands who had abandoned their wives and children. This seriously rankled women's rights leaders, and the name 'Oinkito' was born.

I was somewhat intemperate in my comments yesterday, but women's rights just happens to be one of my passions. The history of the suppression of women in this country is a revolting disgrace. My grandmother, during a part of her life, was not able to legally vote. It was within the lifetime of my mother and aunts that this country finally saw fit to condescendingly allow women to vote.

The suffragettes endured imprisonment beatings, torture, solitary
confinement, withholding of food and water, virulent male hatred, and endless ridicule. The leaders of the movement were women who could have voted with far more intelligence, acumen, and knowledge than nearly every male in America at that time.

Anything that even slightly smacks of turning back the clock on the rights of women or that in any way endorses the dominion of males over women pisses me off no end.

The ruling by Alito that subjected women and their bodies to male
dominion is sufficient to disqualify Alito in my opinion. Combine that with his membership in a blatantly sexist organization, and I see him as doubly unqualified. He not only seeks to extend the rule of a husband over a wife, he at one time wanted to limit the number of women who could avail themselves of a college education.

Despite my passion over these matters, today's topic is even more
serious. I'm sending you an excellent article written sans jargon by a journalist-attorney on the subject of the 'unitary executive doctrine', especially as used by Bush in the relentless construction of a neofascist executive office that Bush has proclaimed will not be hindered by Congress or the Supreme Court.

You will recall my bitching about the fact that the new chief justice
of the Supreme Court was an officer of the right-wing Federalist
Society (FS). To characterize it as 'right-wing' is hardly a hyperbole.

One of the primary goals of the Federalist Society was the
dissemination of the extreme right-wing theory known as the 'unitary executive doctrine'.

The unitary executive doctrine holds that the president can interpret the laws passed by Congress as he damned well pleases. In other words, it is tantamount to a declaration that the president can choose whether or not to obey the laws passed by Congress. Under a supplementary theory known as 'presidential findings', the president can find any meaning he wants in a law passed by Congress and act accordingly.

He will and can attach his declaration that he will be free to obey or not to obey the new law. This statement is published as a footnote to the laws he signs into existence. Put another way, he has declared hundred of times that he has found that a law he signs his name to does not and cannot in any way restrict his powers as president.

The chief justice of the US Supreme Court strongly endorses this
doctrine, something that is quite obvious since he was an officer of a group that has all but made it a mission in life to promote the unitary executive doctrine. Scalia, of course, has made it clear he endorses this view. Keep in mind that Scalia's views on such matters have been enthusiastically embraced by the man who is often sarcastically referred to as 'Scalito'.

'Oinkito' and 'Scalito', how cute. Of course, the mindless Uncle Thomas will follow along. As for Justice Stevens, I predict he will go along with the quartet of four extreme right-wingers most of the time.

Keep in mind that Stevens has been willing to curtail affirmative action, uphold flag burning laws, and happily reinstate the death penalty. He comes from an extremely wealthy conservative family and was a spook in the military. His judicial psyche is right-wing despite his occasional straying from strict right-wingism. That makes for a voting block of five that will happily support the ongoing revolution.

In short, the cabal knew exactly what they were doing when they picked Roberts and Alito. They wanted a Supreme Court that would under no circumstances seek to judicially limit the power of the president. And now they are on the very brink of having that court.

It would seem the new Supreme Court will boast at least five justices who will happily defer to an expansion of presidential powers. This will be the last phase in the creation of what is an ongoing revolution.

The cabal is now in control of our national elections. The Court will
back up a great increase in the power of the executive. Both wings of The Party have thus far meekly buckled under the presidential findings attached to just about every bill Bush has signed. Basically, these findings brazenly state, 'I'm signing this bill into law, but I do not accept that it applies to me.' Consider that this has not brought a peep out of that ovine herd of spectators known as the Democratic Party.

Dick Cheney is now seeing the realization of a lifelong dream for a new America.

Be sure to read today's article. It is one of the more important pieces I've sent you.

Today's Quotation

A Thanksgiving Sermon

What has the church done?

It has made the wife a slave — the property of the husband, and it
placed the husband as much above the wife as Christ was above the husband. It taught that a nun is purer, nobler than a mother. It
induced millions of pure and conscientious girls to renounce the joys of life — to take the veil woven of night and death, to wear the
habiliments of the dead — made them believe that they were the brides of Christ.

For my part, I would just as soon be a widow as the bride of a man who had been dead for eighteen hundred years.

Unknown author

Warmest regards,
Richard

======================================================

1/9/06 writ.findlaw.com

The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?

by Jennifer Van Bergen

When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.

This news came fast on the heels of Bush's shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.

And before that, Bush declared he had the unilateral authority to
ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.

All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: 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.

In this column, I will consider the meaning of the unitary executive
doctrine within a democratic government that respects the separation of powers. I will ask: Can our government remain true to its nature, yet also embrace this doctrine?

I will also consider what the President and his legal advisers mean by applying the unitary executive doctrine. And I will argue that the
doctrine violates basic tenets of our system of checks and balances, quietly crossing longstanding legal and moral boundaries that are essential to a democratic society.

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."

Presidential signing statements have gotten very little media
attention. They are, however, highly important documents that define how the President interprets the laws he signs. Presidents use such statements to protects the prerogative of their office and ensure control over the executive branch functions.

Presidents also -- since Reagan -- have used such statements to create a kind of alternative legislative history. Attorney General Ed Meese explained in 1986 that:

To make sure that the President's own understanding of what's in a bill is the same . . . is given consideration at the time of statutory
construction later on by a court, we have now arranged with West
Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.

The alternative legislative history would, according to Dr. Christopher S. Kelley, professor of political science at the Miami University at Oxford, Ohio, "contain certain policy or principles that the administration had lost in its negotiations" with Congress.

The Supreme Court has paid close attention to presidential signing
statements. Indeed, in two important decisions -- the Chadha and
Bowsher decisions - the Court relied in part on president signing
statements in interpreting laws. Other federal courts, sources show, have taken note of them too.

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.

What Does the Administration Mean When It Refers to the "Unitary
Executive"?

Dr. Kelley notes that the unitary executive doctrine arose as the
result of the twin circumstances of Vietnam and Watergate. Kelley
asserts that "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," which resulted in a congressional assault on presidential prerogatives.

For example, consider the Foreign Intelligence Surveillance Act (FISA) which Bush evaded when authorizing the NSA to tap without warrants -- even those issued by the FISA court. FISA was enacted after the fall of Nixon with the precise intention of curbing unchecked executive branch surveillance. (Indeed, Nixon's improper use of domestic surveillance was included in Article 2 paragraph (2) of the impeachment articles against him.)

According to Kelley, these congressional limits on the presidency, in turn, led "some very creative people" in the White House and the Department of Justice's Office of Legal Counsel (OLC) to fight back, in an attempt to foil or blunt these limits. In their view, these laws were legislative attempts to strip the president of his rightful
powers. Prominent among those in the movement to preserve presidential power and champion the unitary executive doctrine were the founding members of the Federalist Society, nearly all of whom worked in the Nixon, Ford, and Reagan White Houses.

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 Unitary Executive Versus Judicial Supremacy

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."

Of course, the President has a duty not to undermine his own office, as University of Miami law professor Michael A. Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the "Take Care clause" to preserve, protect, and defend the Constitution and to "take care" that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush's recent actions make it clear that he interprets the
coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

This is a form of presidential rebellion against Congress and the
courts, and possibly a violation of President Bush's oath of office, as well.

After all, can it be possible that that oath means that the President
must uphold the Constitution only as he construes it - and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn't like - even though they were validly passed by Congress and signed into law by him?

Analyzing Bush's Disturbing Signing Statement for the McCain
Anti-Torture Bill

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,