***POLL**** The Unitary Executive.

[techs]

http://en.wikipedia.org/wiki/Unitary_Presidency
http://en.wikipedia.org/wiki/John_Yoo

President Bush has applied the theory of the "unitary executive" in a wide range of substantive issues, often issuing signing statements detailing how the executive branch will construe legislation. President Bush issued at least 435 signing statements in his first term alone - more than the combined number issued by all previous US presidents.


Unitary theory holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international. Opponents of the theory point out that the Constitution grants no exceptional war powers or authority to the President, and point to the Supreme Court decisions against previous Presidental claims of war authority in Ex Parte Milligan and Youngstown Sheet & Tube Co. v. Sawyer to support their view. Others note that the view Yoo advocates, closely resembles the Führerprinzip, and is not unlike the one seen in police states.

Yoo also contends that the President, and not the Congress or courts, has sole authority to interpret international treaties such as the Geneva Convention "because treaty interpretation is a key feature of the conduct of foreign affairs".[5] His positions on executive power, collectively termed the Yoo Doctrine or Unitary Executive theory, are controversial since it is suggested the theory holds that the President's war powers place him above any law.

Cassel: If the President deems that he?s got to torture somebody, including by crushing the testicles of the person?s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.



The key elements, as I see them are:
1) The President decides what any law passed by Congress really means, and the President is free to interpet the law in exactly the opposite way from the actual meaning and intent of the law.
2) During a time of war the President can do anything he wants to.
3) According to Bush and Yoo the President can determine, without input from Congress, nor Congressional declaration of war, that a time of war exists on his own.

 

[Jaskalas]

Congress can always decide that the President has acted out of line, if they are so inclined. Then every four years the voters decide directly. Do you have a problem with this?

You certainly feel the need to repeatedly bemoan the President on actions where multiple, if not all, branches of government are in agreement.

 

[Lemon law]

This is no different from the views expounded by Aristotle---that a benign dictator was best---our founding fathers were a more sceptical bunch---and believed the wise dictator was rarely the case.
And hence set up a system of checks and balances.---three co-equal branches.

The idea that congress should just go along with the president---or impeach him---makes the question
too binary-----and rather absurd---do you believe in GWB---or the constitution?

 

[techs]

Originally posted by: Jaskalas
Congress can always decide that the President has acted out of line, if they are so inclined. Then every four years the voters decide directly. Do you have a problem with this?

You certainly feel the need to repeatedly bemoan the President on actions where multiple, if not all, branches of government are in agreement.

Ah. the idea that Congress can just go and impeach the President?? That is a pretty extreme "checks and balances" theory. Or are you saying Congress can just go back and pass a law telling the President he can't make changes to the law they already passed (and in most the cases the President declined to vetor)? Doesn't that change the the whole system of government we have where only Congress passes laws? Under your plan Congress would need to pass a law two times. Or even more if the President interperts the second law against Congresses wishes?
Isn't that fundamentally and diametrically opposed to the Constitution which only gives the President the right to veto a law and not write laws?

 

[Lemon law]

Are we also not setting up what amounts to monarchy---a King---but then you have another problem.
Even if you believe GWB is wise and omnipetent---what do you do to choose a sucessor when GWB fails to live forever?---and in his dying act GWB appoints a sucessor--the son of godzilla who is a real idiot. And is anything but wise and prudent.

Which is also precisely what happened to Rome--which when fairly small was governed by a Senate for almost a thousand years of steady expansion---but in the time of Julius Ceasar---the senate was proving too slow and indecisive---even if Ceasar was not too bad--they got some real duds in the suceeding lines---Calugula and Nero being but two that live in history as exactly that---real idiots.

But as Churchchill said---democracy has many things wrong with it---but the alternatives are even worse.

 

[ProfJohn]

?Unitary theory holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international. ?

I think you are combining Unitary theory and the Yoo doctrine in the above statement.
If you read the Wiki link on Unitary theory you do not see war powers mentioned.

The theory is just that President has total control over the executive branch and how the branch operates.
In essence the theory states that congress can not pass laws that limit how the President runs the executive branch, outside of its ?power of the purse.?
Congress can create and fund the EPA under the executive branch, but congress can not then declare that the President must put a female in charge of the EPA.

Now on the War powers and what Mr. Yoo is saying. I would say he might be taking things to the extreme.

However, when you start talking about the President and Congress and wars things start to get a bit tricky.
Same thing when it comes to interpretation of treaties. Congress only has the right to approve treaties, not interpret or modify them. If the President decides that crushing someone?s balls does not qualify as torture under the Geneva Convention congress is powerless to act upon this and as are the courts. Congress could try to pass a law declaring it illegal under US law to crush someone?s balls though. (Obviously this is an extreme example and there are already laws that limit what one can do legally to prisoners.)

On this whole signing statements thing. It seems to be a bunch of noise about nothing. Despite all the whining and crying I have yet to hear of any serious breech of powers by Bush via signing statements. Just like the whole ?Bush can open your mail thread? Everyone involved in that, except the panic mongers on the left, declared that they are doing nothing different than what they have always done in regards to opening mail.

Would it be better if there were less signing statements? Yes, but overall I do not see them as much of a threat. I am more worried about the precedent this sets. What happens when we have a Democrat President and they start doing the same thing? Those of you on the left may think their signing statements are great, while those on the right bitch and moan. Essentially it is the slippery slope argument in effect here. I don?t want a Republican President creating exceptions to laws, because I do not want a Democrat President doing the same.

 

[Lemon law]

Despite what appolgists want to say---GWB&co. is making the most blatent assult on the US constitution in United States history. I would not be surprised that if he persists--it will become necessary to impeach him.

But as a practical matter--if the Iraq war continues to go badly---which is highly probable---GWB will be in a very poor position to push the matter---but if he uses his constitutional powers and decides to bomb Iran---we will have no conventional wisdom to guide us.

Barring an Iranian bombing---we may all have ringside seats to a rather open war between the legislative and executive branches---if the President stays stuck on stupid.

And despite any efforts of the President clothing his position in high sounding legal mumbo jumbo,
if the President pushes the issue, he will lose badly in the end.---but sadly--neocons are always overoptimistic.

 

[ProfJohn]

Lemon, as usual I will disagree with your first statement. What Constitutional right has the President taken away? And in what way is he ?assaulting? the Constitution.
As pointed out in the link to Wikipedia a lot of what Bush is doing via signing statements is murky when it comes to right and wrong. It is interpretation of what he can and can?t do as President that is at issue here.
Which brings me to your last statement. The only way he will ?lose badly? is if someone takes him to court over his signing statements and he losses there. This has yet to happen, so that is also open as to what will or will not happen.
(As I said before I am not a big fan of the signing statements either, however, I have yet to see any evidence that he is assaulting the Constitution by issuing them.)

As far as your comments on him bombing Iran. We do have precedence. Clinton bombed Kosovo, Sudan, and Afghanistan without consulting congress, and nothing happened. Bush 41 invaded Panama and Reagan invaded Grenada, again in both cases nothing happened. If Bush went off and bombed Iran without talking to congress first I am not sure congress could or would do anything about it. As long as Bush stayed within the broad confines of previous bombings he could most likely get a way with it. (In broad confines I mean bombing Iran?s WMD plants etc) Now if he launched an all out invasion of Iran we would have a problem.

 

[Rainsford]

I find it very interesting that an important component of unitary executive theory, perhaps even the most vital component of the theory, is that a powerful leader can be trusted to use his power for the good of the country. This, despite specific and frequent evidence through history that not only do powerful men frequently misuse that power, but that the dangers posed by them doing so far outweigh most external threats to a country. Arguments that this isn't a threat in a democracy are ignorant at best, I don't think I need to mention the obvious historical example of why the check of the people isn't all it's cracked up to be.

 

[Craig234]

John, when you say he 'takes it to the extreme', that's a meaningless comment on the issue of whether he is within or without the law. The extreme of what's allowed, in the law? The extreme of how it could be interpreted outside the law? What? You either think his position is legally correct or it isn't...

What Constitutional right has the President taken away? And in what way is he ?assaulting? the Constitution.

The right of the congress to pass laws governing the government's actions. It's an assault because the president is abusing his power to fail to follow the constitutional requirement that the Congress has the power to pass laws he must follow. Bush pushes it all the way to the power of enforcement - who has the guns? - and impeachment.

When Congress recently passed a law specifically saying the government cannot search mail without a warrant, and Bush said he'll searc mail without a warrant anyway, that is an attack on the Congress, the rule of law, the constitution, the public.

In your analogy that the Congress can't say the head of the EPA must be a woman, there are only two limits I'm aware of on Congress doing so; the constitutional power of the president in appointing his cabinet, and the constitutional guarantee for equal protection in the 14th amendment.

On the other hand, the unitary idea would let Bush take the EPA and turn it into 'Bush's Texas Ranch beautification corps' or 'Bush's travelling band' or anything else he wanted.

 

[Lemon law]

Also ignored is the actions of GWB is in effect laying the groundwork for a future seijure of that power.
But again the President has a problem---suppose a weak congress or terrified congress grants the President some power that the courts later deem unconstitutional--it will be correct in saying the congress erred and passed a law they cannot pass--namely to over-ride the constitution without amending it first---and that other co-equal branch should step in.---and in fact did when the congress granted the Prez a line item veto.

But GWB assuming dictorial powers may be seen as a good idea by neo-con types---but the rest of the government is bound to see it as a threat---and they were there before GWB--and plan to be there after GWB leaves.

This country found the needed backbone during watergate---we may need to do it again.

 

[Craig234]

Originally posted by: Lemon law
Also ignored is the actions of GWB is in effect laying the groundwork for a future seijure of that power.
But again the President has a problem---suppose a weak congress or terrified congress grants the President some power that the courts later deem unconstitutional--it will be correct in saying the congress erred and passed a law they cannot pass--namely to over-ride the constitution without amending it first---and that other co-equal branch should step in.---and in fact did when the congress granted the Prez a line item veto.

But GWB assuming dictorial powers may be seen as a good idea by neo-con types---but the rest of the government is bound to see it as a threat---and they were there before GWB--and plan to be there after GWB leaves.

This country found the needed backbone during watergate---we may need to do it again.

However, the only power that's going to say if the president has been given/taken unconstitutional powers is the Supreme Court, which has been packed now.

This is why the Federalist Society is so dangerous with its pro-corporate anti-citizens' rights agenda.

Remember when the court ruled against Bush finally last June to great acclaim that rights had been protected? The four far-right justices were 4 votes the other way.

 

[Lemon law]

To Craig234,

Somewhat of a point---but when GWB says to the SC--or the broader judiciary---just follow my lead---you no longer matter and I am now doing your job---even if such
people tend to agree it may be for noble ends--at the end of the day---its just a people knee jerk thing to protect your turf.---and if GWB tries to shove---they may well
shove back with surprising force.

Same with congress---but it is well possible we will get to this branch on branch governmental impasse in the near future.