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.

Russ Feingold on restoring our Constitution

Senator Russ Feingold (D-WI) spoke yesterday in a special hearing to address how we can repair the damage done by the Bush-Cheney administration to the system of checks and balances and to our fundamental liberties as Americans.

Seems like the perfect opportunity for our presidential candidates to demonstrate their interest in change.

But as John Nichols pointed out in The Nation, neither party's presidential candidate - Obama or McCain - was there. Nor did either make any statement today acknowledging Constitution Day, and the ravages that have been inflicted on our Constitution by the current administration (Mr. Obama - my God - how many opportunities do you plan to miss?)

As a voting American citizen, I'd sure like to know... why weren't they there? This new 'Unitary Executive' that Bush and Cheney have created somehow isn't relevant to the future president?

It certainly is relevant to us.

If the national media had done its job in their seemingly endless and empty candidate debates, our current candidates' plans concerning our former system of checks and balances would be known to us.

How strange that we are facing a national election with absolutely no idea what either candidate plans to do to restore our Constitution once he assumes the nations' highest office - resplendent with all of its new kingly powers. Or perhaps we will one day have... a queen? Of course Palin didn't make a statement either (must not have been her day to speak with the media.)

Independent candidate Ralph Nader took the opportunity today to issue a video statement blasting both parties for failing to protect our constitutional rights as citizens; he even mentions our media crisis, and calls on American citizens to 'be the media ourselves.'

Constitution Subcommittee chair Senator Russ Feingold said the following at yesterday's call to action:

Tomorrow, September 17, is the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia. It is a sad fact as we approach that anniversary that for the past seven and a half years, and especially since 9/11, the Bush Administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country. By now, the public can be excused for being almost numb to new revelations of government wrongdoing and overreaching. The catalogue is breathtaking, even when immensely complicated and far reaching programs and events are reduced to simple catch phrases: torture, Guantanamo, ignoring the Geneva Conventions, warrantless wiretapping, data mining, destruction of emails, U.S. Attorney firings, stonewalling of congressional oversight, abuse of the state secrets doctrine and executive privilege, secret abrogation of executive orders, signing statements. This is a shameful legacy that will haunt our country for years to come.

There can be no dispute that the rule of law is central to our democracy and our system of government. But what does ‘the rule of law' really mean? Well, as Thomas Paine said in 1776: ‘In America, the law is king.' That, of course, was a truly revolutionary concept at a time when the King, quite literally, was the law.

Over 200 years later, we still must struggle to fulfill Paine's simply stated vision. It is not always easy, nor is it something that once done need not be carefully maintained. Justice Frankfurter wrote that law:

is an enveloping and permeating habituation of behavior, reflecting the counsels of reason on the part of those entrusted with power in reconciling the pressures of conflicting interests. Once we conceive ‘the rule of law' as embracing the whole range of presuppositions on which government is conducted . . ., the relevant question is not, has it been achieved, but, is it conscientiously and systematically pursued.

The post-September 11th period is not, of course, the first time that events have caused great stress for the checks and balances of our system of government. As Berkeley law professors Daniel Farber and Anne Joseph O'Connell write in testimony submitted for this hearing: ‘The greatest constitutional crisis in our history came with the Civil War, which tested the nature of the Union, the scope of presidential power, and the extent of liberty that can survive in war time.' But as legal scholar Louis Fisher of the Library of Congress describes in his testimony, President Lincoln pursued a much different approach than our current President when he believed he needed to act in an extra-constitutional manner to save the Union. He acted openly, and sought Congress's participation and ultimately approval of his actions. According to Dr. Fisher:

[Lincoln] took actions we are all familiar with, including withdrawing funds from the Treasury without an appropriation, calling up the troops, placing a blockade on the South, and suspending the writ of habeas corpus. In ordering those actions, Lincoln never claimed to be acting legally or constitutionally and never argued that Article II somehow allowed him to do what he did. Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed the sanction of Congress.... He recognized that the superior lawmaking body was Congress, not the President.

Each era brings its own challenges to the conscientious and systematic pursuit of the rule of law. How the leaders of our government respond to those challenges at the time they occur is, of course, critical. But recognizing that leaders do not always perform perfectly, that not every President is an Abraham Lincoln, the years that follow a crisis are perhaps even more important. And soon, this Administration will be over. So the obvious question is: ‘Where do we go from here?' I believe that one of the most important things that the next President must do, whoever he may be, is take immediate and concrete steps to restore the rule of law in this country. He must make sure that the excesses of this Administration don't become so ingrained in our system that they change the very notion of what the law is.

That, of course, is much easier said than done. It's not simply a matter of a new President saying, ‘Ok, I won't do that anymore.' This President's transgressions are so deep and the damage to our system of government so extensive that a concerted effort from the executive and legislative branches will be needed. And that means the new President will, in some respects, have to go against his institutional interests.

That is why I called this hearing - to hear from legal and historical experts on how the next President should go about tackling the wreckage that this President will leave. I've asked our two panels of experts who will testify to be forward-looking - to not only review what has gone wrong in the past seven or eight years, but to address very specifically what needs to be set right starting next year and how to go about doing it.

In addition to the testimony of the witnesses here today, I solicited written testimony from advocates, law professors, historians and other experts. So far we have received nearly two dozen submissions from a host of national groups and distinguished individuals. I want to thank each and every person who made the effort to prepare testimony for this hearing. You have done the country a real service.

All of this testimony will be included in the written record of the hearing, which I plan to present to the incoming Administration. The submissions we have received so far can be seen on my website at feingold.senate.gov. I hope that many of these recommendations, along with the testimony we will hear today, will serve as a blueprint for the new President so that he can get started right away on this immense and extremely important job of restoring the rule of law.

In a video interview (sound only) Senator Feingold made basically the same statement last week:

ACLU: US Constitution in grave danger

Not that this is news to me, but when the ACLU comes out and makes a statement like this... we've gone down a very dark road indeed.

I fail to see how Congress has any choice, given their oaths of office, but to defend it. Those who fail to defend it now should be accountable in the next election... and indeed when they come home for their 'August vacation' and leave their posts in Washington. This abuse of our democracy cannot stand. The people have spoken... unfortunately we are having trouble being heard over the din of the lobbyists.

From United Press International:

The ACLU in a statement urged the U.S. Congress to "vote to hold White House officials in contempt for refusing to cooperate with legitimate congressional subpoenas."

The ACLU statement said the issue had become "a constitutional crisis that threatens to destroy the separation of powers."

"Presidents have tried in the past to overreach in claiming executive privilege," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "However, Congress has long served as a check to such abuses of power, slapping the president's hand when needed and pursuing contempt or enforcement actions that eventually resulted in the release of crucial information. Today's Congress must do the same if it wishes to remain a meaningful and independent branch of government."

The ACLU said it "rejected claims that Congress' responsibility to conduct oversight or investigate executive misconduct was somehow less important than its legislative function and therefore not worthy of compulsory enforcement."

"It's do-or-die time for the separation of powers," Fredrickson said. "Congress is facing a historic moment when it can fight for its rightful place in our Constitution or accept the president's continued and sweeping claims of supremacy."

The ACLU noted that U.S. courts "have long supported Congress' authority not only to pass laws, but also to investigate their application. The courts have asserted that claims of executive privilege are a potentially dangerous proposition that should only be applied, and can only be upheld, under narrow circumstances."