Finally: Questioning the idea of 'Unitary Executive'

I have been waiting for someone to ask this question in a presidential debate:

Will you roll back the unprecedented 'Unitary Executive' powers that have been claimed by President Bush and Vice President Cheney; restoring both our constitutional rights as citizens, and the pre-existing balance of power between the three branches of our Federal Government?

Since it doesn't appear that anyone plans to ask this question directly, I was at least encouraged that Dana Nelson of the LA Times brought the subject up in an essay on Alternet.

One of the more interesting points she made was that this power grab has been ongoing, across party lines, going back to the Reagan Administration:

Plenty of presidents have worked to increase presidential power over the years, but the theory of the unitary executive, first proposed under President Reagan, has been expanded since then by every president, Democrat and Republican alike. Reagan's notion was that only a strong president would be able to dramatically limit big government. Perhaps drawing on a model for unitary corporate leadership in which the CEO also serves as chairman of the board, the so-called unitary executive promised undivided presidential control of the executive branch and its agencies, expanded unilateral powers and avowedly adversarial relations with Congress.

In the years that followed, Heritage Foundation and Federalist Society conservatives worked to provide a constitutional cover for this theory, producing thousands of pages in the 1990s claiming -- often erroneously and misleadingly -- that the framers themselves had intended this model for the office of the presidency.

Of course the framers wanted nothing of the sort. For example, the words of our very first president, George Washington:

It is important, likewise, that the habits of thinking in a free country should inspire caution, in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield. -- George Washington

And of course, James Madison:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Of course, 'We the People' have never advocated for expanding presidential powers. However our presidents thought it was a terrific idea. In the chaos following 9/11, W simply ran off with whatever power hadn't already been taken by his predecessors. And he took his power with the blessing of a nervous, shell-shocked congress; still recovering from the anthrax attacks that - amazingly - occurred while the Patriot Act was still being debated on the floor.

Each president since 1980 has used the theory to seize more and more power. Reagan used expanded unilateral powers to launch an era of deregulation. Presidents George H.W. Bush, Clinton and George W. Bush all used the legislative signing statement -- the written text they are allowed to give when signing a bill into law in order to explain their position -- not simply to offer warnings and legal interpretations but to make unilateral determinations about the validity of the provisions of particular statutes. The American Bar Assn. denounced this practice in 2006 as presenting "grave harm to the separation of powers doctrine, and the system of checks and balances, that have sustained our democracy for more than two centuries."

If we had a president with the integrity of one George Washington, he would hand back that which does not rightfully belong to him and restore the balance of power that has guaranteed our democracy - our freedom - for over 200 years.

Washington himself set the precedent for limiting presidential terms of office by stepping down voluntarily after two. Perhaps a President Obama (should he get elected -- and we know McCain would never do this) would find it within his character to make a similar move, and dismantle the Unitary Executive once and for all.

If people have found Bush's exercise of executive power alarming, they should not only begin questioning presidential candidates about it, they should make it clear to their congressional representatives that they want these excess powers checked. Barack Obama has already promised that he will continue using signing statements, though he will not act as if they have the force of law. Interestingly enough, John McCain has suggested he will end the practice. These slim indicators deserve more pressure and scrutiny.