First, the observation. He uses as a backdrop the hearings this week involving torture and waterboarding as well as President Bush and Lord Vader's visit to CPAC, the annual meeting of the Rabid Right--the very meeting where people wept when a faux conservative announced he would drop out of the running for the presidency and booed when the consistent conservative and life long Republican /presidential nominee took the stage.
Vader used colorful language to put his stamp on the righteousness of this administration.
Rutten argues that the administration, with its actions up to the end, is putting McCain on notice: "...if he wants help in patching things up with the conservative base, he'd better pay deference to an obscure legal theory called the 'unitary executive." This would be an interesting quid pro quo if it were true. The administration, and its allies, coming to McCain, and making a deal with McCain: "You both keep quiet about the bodies buried all over the White House and you agree to take on the refugees from 'Lawyers for Romney' and we will sell you to the base." For McCain to suddenly throw open his arms and embrace the unitary executive and all of its tenets would take a 180 from where he stands now. McCain, for instance, has been the only major contender for the presidency to openly eschew the type of power exercised by contemporary presidents. For instance, back in November 2007, McCain told a Rotary Club that he would "never issue a signing statement" when confronted with a bill that has problematic provisions. So I am not sure if Rutten has learned something or is just making a political guess.
Now the problems. First, I am betting that most people who are average followers of politics can tell you that they have heard of the signing statement. I wonder when we can drop the "obscure" adjective when talking about? Rutten continues to obscure what the unitary executive stands for. He writes:
Whether they're liberals or conservatives, most constitutional scholars don't think the unitary executive notion holds historical or legal water. Essentially, it proposes that the Constitution invests sole executive authority in the president and, therefore, neither the legislative nor the judicial branch can check his exercise of executive power, particularly when it comes to his activities as commander in chief.
He can throw all the "most constitutional scholars" he wants. It does not do anything to counter the fact that the unitary executive has become an ingrained practice inside the executive branch. Next, the unitarians--at least true unitarians--do not believe that "the legislative nor the judicial branch can check...executive power." Nothing could be further from the truth. They start from the premise that all the branches of government are vigorously pushing their own power, and a president must be ever vigilant to make sure that the power of the presidency is not diminished. What a president objects to is the mixing of power--creating "hybrid commissions" that mix the legislative and executive powers. That is very much a different thing. It certainly has been the case that the Bush administration has made constitutionally questionable claims about executive power couched in unitarian terms. But the administration getting the theory wrong is the fault of the administration--not the theory or those who are proponents thereof.
Later, Rutten says this about the signing statement:
Since taking office, Bush has made extraordinary use of the executive "signing statement." This allows a president to sign a bill but to attach a statement saying -- essentially -- that he intends to enforce it in a particular way. Bush has attached about 800 of these statements to legislation he has signed, and, in close to 200 instances, he has explicitly indicated that he intends to enforce a new law only insofar as it does not conflict with the unitary executive theory.
And he says this:
One of those signing statements was attached to McCain's Detainee Treatment Act of 2005, which passed the Senate 90 to 9 and explicitly outlawed waterboarding. Bush signed it, but he wrote that it would be enforced "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."
To the first. Bush has made many more challenges than 800. My guess is that Rutten bookmarked this October 2006 article by Charlie Savage that lists Bush's challenges at 800. Wouldn't you think to check and see if Bush has made any more challenges? I don't fault Rutten entirely since many reporters and members of Congress continue to use outdated figures. Next, he makes a big deal that nearly "200 instances" have seen the use of the "unitary executive" to justify the statement. OK, but what do we make of Bush's most recent signing statement where he said this:
Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.
Not one mention of the "unitary executive," yet this would be the perfect place for it. Why has he dropped it? What does it mean that it is not referenced? The unitary executive theory does not apply in this case?
In the second highlighted passage, Rutten refers to the DTA of 2005, which gave the signing statement and the unitary executive theory a lot of play. Bush backs away from his stance on torture after McCain refuses to stand down, and then he issues a signing statement that takes back what he said. Given the amount of attention this received, did Bush go ahead and green light torture in the years 2006 and 2007? Don't think so. So should we continue to give mileage to a statement without action? Can't we say the system worked? Bush took a stand and was smacked down by the Congress, the press, and the public. This should be treated as a highpoint for our constitutional system and not as the end of it.
I have written Rutten with my concerns and questions. If he responds, I will let you know.
