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What Social Animals Owe to Each Other

Tuesday, May 02, 2006

The Frightening Unitary Executive Doctrine


George II and his people have made frightening claims about the scope of the allegedly inherent and implied powers of the presidency. Under this doctrine, a president may do anything in the name of fighting a war. Since in the administration's view the current and implicitly permanent "war on terror" includes the U.S. in the battlefield, the president can pretty much ignore the Bill of Rights even for citizens. Bye-bye Fourth Amendment protections. See ya, habeas corpus. Laws and treaties, forbidding torture, for example, can be ignored. Etc. Etc. Etc.

From my reading so far, opponents of Bush's "unitary executive" doctrine seem to have the better constitutional argument. But if he turns out to be right, then it only goes to show you what's wrong with the Constitution. As Spooner said, either it authorized the government we have or it was powerless to prevent it. In either case, who needs it?

On the subject of the "unitary executive," and federal power in general under George II, see the new Cato Institute publication "Power Surge: The Constitutional Record of George W. Bush," by my old friends and former colleagues Gene Healy and Timothy Lynch. From the executive summary:
Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

* a federal government empowered to regulate core political speech -- and restrict it greatly when it counts the most: in the days before a federal election;

* a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;

* a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror -- in other words, perhaps forever; and

* a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.
Also, see this Boston Globe article by Charlie Savage. It begins:
President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution. . . . Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty "to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to "execute" a law he believes is unconstitutional.
The president's strategy has been pointed out about by several commentators (see the article linked above). In five and a half years he has vetoed no bills. Yet he claims the power to ignore any and all provisions of bills passed by Congress, thus giving himself, de facto, the line-item veto, but without an opportunity for Congress to override it. In several cases he has negotiated compromises in a bill in order win passage, only to say later in a "signing letter" that he has no intention of enforcing those sections. Members of his own party have complained about this treachery. According to Bruce Fein, a conservative constitutional scholar with integrity, "This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy. There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

Cross-posted at Liberty & Power.

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