During the hearing, the unitary executive theory took center stage, and Think Progress (the lefty organization) was quick to distort it. Hill was asked by one of the California twins, Barbara Boxer (D. CA) what would be his advice to the EPA administrator if the President asked him to do something illegal. And Hill answered:
I believe that the courts have held, Senator, that within the unitary executive the administrator and the EPA, just as with all executive agencies, work for the President and are responsible to the President of the United States.
It is interesting that the unitary executive theory still gets mentioned within the Executive Branch given how the president has gone silent when it comes to the theory. The answer was right in line with the theory, and says something about how it has become institutionalized deep inside the Executive Branch. The theory says that the president is accountable to the people for any decision made by an executive branch officer and when the president orders an inferior officer to do something, it is not the officer to question whether it is constitutional or not. If it is considered unconstitutional, then the president must answer for it. And the theory certainly does hold all political officials accountable to the judgment of the system. The Congress has within it the means to punish a president who violates the Constitution, and if Congress doesn't live up to its responsibilities, it falls to the people (elections, changing the Constitution). But critics of the theory (who will not be critics if a Democrat wins the presidency) distort the theory. This is what Think Progress says about the theory:
The "unitary executive" theory is a formerly obscure, right-wing legal argument that asserts "all executive authority must be in the President's hands, without exception." In other words, the president has practically unlimited executive power, and no actions of the courts nor the Congress can override it. [Then this non-sequitor] Supreme Court Justice Samuel Alito is a champion of the doctrine.
The theory says nothing of the sort. It does not say that the president can do whatever he wants and no one--not Congress, the courts, or the public--"can override it." The theory starts from the premise of aggressive and vigorous interactions between the branches of government, where each must be vigilant to insure that the prerogatives of the office or institution do not decline, but instead increase. The Congress was diligent in its constitutional responsibilities during the Clinton years where he faced a Republican majority in opposition. But it was Congress that laid down and played dead once President Bush was elected, and then re-elected. And the people corrected that problem by throwing Republican out on their ears in 2006. And if the Democrats win the presidency in 2008, then perhaps the public will have finished the job.
It would be nice that my liberal cohorts would turn their attention to the public--educating them about the unitary executive and the separation of powers--so that the public will force the institutions into good behavior, and not blasting a president who continues to use the powers given to him or her by previous presidents and then remain mute when their party exercises the same powers. For example, the presidential signing statement will continue to be front and center 12:01 p.m. January 20, 2009. Will these same groups continue their ear piercing cries if it is a Democrat who takes the oath?
