The Unitary Presidency, its Source and its Attack on Democracy, the Constitution, the Public Treasury, and the Citizen’s Well-being

The concept of the unitary presidency, also known as the unitary executive, holds that the three branches of government have independent power to interpret the law. Hence, the President of the United States has power independent of Congress or the courts to interpret law and need not follow the will of either Congress or the Courts. Theoretically the Congress and the Courts have each the power to interpret the law as they see fit. They do not, however, have the power to enforce their interpretations. A glaring example of this doctrine has been Bush’s use of signing statements to exert his “law” over that of that of Congress, the only body authorized to create law by the Constitution. Signing statements were infrequently used prior to Bush, usually to protect the prerogatives of the executive branch against perceived overreaching by Congress. From President Monroe to Jimmy Carter signing statements had been used 75 times. G. W. Bush used this device at least 435 times in his first term alone. While Bush far surpasses other presidents in this practice, there was a notable increase during Reagan’s administration, during which Attorney General Ed Meese managed to get West Publishing to include presidential signings in its United States Code Annotated, perhaps the most prestigious and widely used record of United States law. Notice this is law not administrative directives, the latter of which is the province of the executive branch of government.

Bush has also used the “unitary executive” to abrogate treaties, to reject the Geneva Convention and to inflict imprisonment and torture contrary to American law and he has kept these secret imprisonments and tortures out of the courts by asserting his office’s supremacy. Never has fascism been so blatantly declared in this country.

As Jennifer Van Bergen describes it in her excellent Findlaw article http://writ.news.findlaw.com/commentary/20060109_bergen.html ,”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.”

Additionally, the unitary executive theory would reverses the definitive 1803 Marbury vs. Madison case in which Chief Justice Marshall’s Supreme Court ruled that in Constitutional issues the courts and ultimately the Supreme Court have the final say.

A major source for this so called theory, which obviously destroys the fundamental Constitutional premise of a balance of powers, has been the Federalist Society for Law and Public Policy Studies. This is a Far Right group formed in 1982. It is promoting a Far Right attack on the Constitution’s balance of powers requirement as well as the placing of its members in influential positions in government. It has active chapters in about 180 law schools. Among its members are Supreme Court Justices Scalia, Alito and Roberts and Bush appointees Ashcroft and Chertoff, A long, but partial, list of this group’s members in government as well as additional information can be found at http://www.pfaw.org/pfaw/general/default.aspx?oid=3149. The group is funded by such neofascist sources as the Scarife Foundation. According to Supreme Court Justice Alito, a member of the Federalist Society, the organization came out of the Nixon and Reagan administration. The first campus chapters were established at the Yale and Harvard and the University of Chicago law schools. All of this was in place when G. W. Bush became president. His first Attorney General was John Ashcroft, a member of the Federalist Society, who asserted that protest against the president in time of war was treason.

This is a sketch of the legal source of the unitary executive. However, one need only ask why would so much effort go into radical revisionism after 200 years of settled law and precedent involving the relationships of the three branches of government and the role of the Constitution? There has been no massive civil emergency that might occasion such thought as it did when FDR sought to change the composition of the Supreme Court by adding new members. The Court kept siding with property against the mass of suffering citizenry by declaring as unconstitutional measures to alleviate the depression the propertied class had caused.

The underlying motivation of this legal undertaking was to transfer government power and public wealth and resources to the private sector. As Grover Norquist has said, he wants”To drown the beast (government) in a bathtub.” I might add that it has not been Republicans alone that have adopted this posture. Bill Clinton with Al Gore’s assistance auctioned off major portions of the communications spectrum, a public property, to the corporations. Al Gore has now signed on to a major venture capitalist corporation asserting that this is a great opportunity for the private sector to profit from global warming. Gore asserted on the occasion that "What we (his corporation) are going to have to put in place is a combination of the Manhattan Project, the Apollo project, and the Marshall Plan, and scale it globally." As Andrew Leopold in Salon observes, all three of those projects were initiated and successfully completed by government, not corporations. As Naomi Klein says in her seminal new book Shock Doctrine, corporate globalization’s treatment of countries around the world has been brought home with a vengeance by G. W. Bush’s administration. What was done to Argentina, Russia, China, etc has now been done to the United States. The dismantling of government by way of privatization, the resultant massive transfer of public wealth to the private sector, and the oppression of the citizenry have been hallmarks of American globalization.

With the vast harm that Bush’s unprecedented attack on the Constitution and our democracy has done and the resultant chaos that he has inflicted as a unitary executive and the threat his actions pose for the future, it is imperative that current presidential candidates make very clear their views on the matter. Will they thoroughly reverse Bush’s illegal practices and refuse to accept any of the precedents s he has set? Will they refuse to use any of the power that Bush arrogated to the office and, in addition, propose and support laws to make this kind of behavior illegal in the future? Current candidates for president are, in the main, not making this issue anywhere near central to their campaigns. We must insist that they do. I suggest a thorough examination of each candidate’s web site to see if and to what extent this is a central issue for them. It is, in my judgment, not enough to make a few peripheral statements. What is needed is a firm, developed, commitment to reverse this dictatorial policy and replace it with laws or if feasible, a Constitutional amendment to prevent it from cropping up again.

Bob Newhard