Dow PattenAlito’s Unitary Executive
What does Judge Alito’s theory of the “unitary executive” theory have to do with Utah? The Wall Street Journal has an article explaining some of the basis of this radical theory of executive power. This theory of executive power would clearly shield from congressional action former President Clinton’s Grand Staircase National Monument decision that gave many Utahns heartburn. The “unitary executive” theory would also limit Supreme Court review of actions like further nuclear testing in Nevada, waste storage in Utah, and other federal actions that impact not the whole country, but Utah’s health, environment and quality of life.
The confirmation of Sam Alito may focus on reproductive rights, and perhaps rightly so, given the memoranda he wrote on the issue while at the department of justice. But there are many, many other issues on which Judge Alito should be not only questioned, but deeply probed.
January 23rd, 2006 at 3:23 pm
I cannot help but notice that conservatives, so exercised that various individual rights not mentioned by name in the Constitution are claimed to be found in its shadows, must resort to turning their ordinary construction of the document on its head to find the authorization for a plenary-powered chief executive operating virtually without checks and balances from the other deparments of the general government.
It is conservative doctrine that the Constitution only authorizes specific and definite powers for that general government and its officers, but there is no black letter authorization for a unitary executive and no more so in war than in peace. The whole concept is antithetical to the Founders’ blueprint.
The president swears not to defend the people of America but the Constitution itself, and one of his enumerated duties is “he shall take care that the laws be faithfully executed.”
The view that the president can do whatever he wants unless somehow prevented, as opposed to only what is clearly positively prescribed in the Constitution, is a transmogrification of conservative thought with the clear scent of moral relativism not high principle.
January 25th, 2006 at 5:53 pm
The black letter authority for unitary executive is Article II, Sect. 1, Clause 1, the Executive Vesting Clause. Now, it might or might not justify whatever version of unitary executive is under discussion at any particular moment, but there is black letter from which to at least initiate a discussion. It’s not unreasonable or ahistorical or “radical” - or even for that matter, new -to speak of the president’s authority to direct or remove executive officers, or to assert his foreign-affairs authorities not otherwise granted the Senate. The founders conceived of the unitary executive because the committee approach under the Articles of Confederation (which lacked a chief executive) was a dismal failure. No doubt some assertions under some versions of the doctrine exceed original intent to a nutty extreme, but that’s not to say the whole concept is unreasonable.
January 30th, 2006 at 4:21 pm
Apropos Mr. Foster.
If all that is had in mind by Unitary Executive is the simple notion that there is but one chief magistrate for the nation then all right, I give. But the phrase is only topical because far more is contended by the current administration and its supporters when this term is used, some of it quite dark, to my mind.
But, limiting the discussion to the Constitution, it’s worth noting that even there, the idea of a unitary executive is qualified and limited, despite the clear-sounding announcement that “The executive power shall be vested in a President.”
Opponents of ratification criticized the contemplated executive branch as giving the president powers the equal of the King of England, their most familiar and odious example of a unitary executive. Defenders of the Constitution were at great pains to counter this argument by showing the structural ways in which they had limited the powers of the president and shared some of the customary ones with the congress or even the judiciary.
Federalist 69 is an excellent illustration of this. Hamilton draws many distinctions between a king and a president to make clear that the latter is in no way the former.
“The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to … the governor of New York. ”
He goes on to point out
- A king has a hereditary investment, a president a term of four years.
- The president is liable for impeachment and ordinary prosecution and punishment.
- A president has a limited veto of legislative acts; his negative can be overridden.
- The president is commander in chief, but cannot declare war, nor fund, nor raise armies and navies nor set their rules. Hamilton says,”It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
- The power of pardon is limited.
- He can only adjourn the congress if the congress cannot agree on a time.
- He has limited power to appoint for hundreds of significant federal offices, the advice and consent of the Senate being required for ambassadors, justices and many others.
- His conduct of foreign policy is limited, requiring the Senate to make and confirm treaties, for example. Congress, not the president, regulates commerce with foreign powers, grants letters of marque and reprisal and provides for the common defense.
In fact, our Constitution, while demarcating three separate branches, in fact, provides overlapping powers in order for the competing branches to check any attempt at the unalloyed exercise of power in one or both of the others. The notion of a unitary executive is thus limited, not expansive, in keeping with the general theme of the Constitution’s construction. (The power-hungry conservatives at the Federalist Society notwithstanding.”)
January 30th, 2006 at 4:53 pm
In arguing that the powers of the federal government’s separate branches overlap to a degree that provides checks and balances I meant to include the following gem from Madison in Federalist 48.
“IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
Madison further thought that a multiplicity of factions and interests would prevent usurpations of liberty by preventing concerted action against individuals and minorities. He thought such security would only increase as the nation grew in size, scope and population.
Unfortunately, he failed to anticipate an all-powerful two party system, and worse, the possibility that one muscular strain of political philosophy could become entirely dominant in one of those parties and that that party could come to control all branches of the government.