Professor Dana Nelson, a faculty member in the English Department at Vanderbilt University, has written an OpEd piece in today's LA Times titled "The 'Unitary Executive' Question." And true to the title, it leaves the reader with more questions than answers.
What provoked the article was Senator Biden's use of the term during his debate with Governor Palin in regards to his characterization of vice president Cheney as the "most dangerous vice president we've had...in American history..."
Dr. Nelson proceeds to describe the theory in the familiar terms of its critics ("dangerous", "so-called", etc.), and while she does acknowledge that it has been embraced by Democrat and Republican alike, this is an article about Republicans and the current Bush administration's use of the theory. Here are my problems with the article:
1. In the years that followed, (the) Heritage Foundation and (the) 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.
We do not know what she claims is misleading or erroneous. The founding fathers clearly were in support of a unitary executive--the debates produced a resolution for a plural presidency--a three person executive board that would need a vote of 2 of 3 executive officers for bills to be signed into law--and rejected it in favor of a single president--a unitary presidency. In fact, Hamilton argues in "Federalist 70" that the "ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers." Now she is correct that some of the theory's more dedicated proponents attempt to make the case that the aggressive unilateralism that has come to define the actions of contemporary presidents has been there since day one. It is here that these proponents of the unitary executive attempt to fit square pegs in round holes (and even though there is little support for this contention, they still manage to get published in some of our finer academic publishing institutions, such as Yale University Press).
2. Unitarians (for lack of a better word) want to expand the many existing uncheckable executive powers--such as executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements--that already allow presidents to enact a good deal of foreign and domestic policy without aid, interference or consent from Congress.
This ideal that there is no recourse for the Congress, the courts, or the public comes from the fact that President Bush pushed executive orders, signing statements, proclamations, and the like with the complete agreement and support, from 2002-2006, of the United States Congress. Because the Congress refused to question the actions of the Bush administration is not the same thing as saying these actions are uncheckable or unreviewable. But even with a complicit Congress and seemingly complicit Supreme Court, there were moments when they did say enough was enough. For instance, when President Bush attempted to gut the meaning of an important provision in Sarbanes-Oxley, Senators Patrick Leahy (D.VT) and Charles Grassley (R. IA) hounded the administration to the point of forcing them to back down (see this paper for the complete explanation of the incident). And I might be wrong about this, but weren't the military tribunals created by Bush via an order struck down in the Supreme Court decision Hamdan v Rumsfeld? Furthermore, since the Democrats have taken over control of the Congress, the Bush administration has issued just 18 signing statements with just 17 challenges.
3. Dr. Nelson's argument contains contradictions. For instance, when writing about the dangers of the unitary executive, she describes how it allows the president to have undivided presidential control of the executive branch and its agencies..., and yet midway through the article, she blames Congress for handing to the executive branch, during times of crisis, unchecked power: Congress has granted unprecendented powers to the executive and to an unelected and unaccountable secretary of the Treasury. Which is it? Either recent presidents, and their support for the unitary executive, have enabled them to seize control over the executive branch agencies or the executive branch agencies are "accountable to none"?
Conclusion
I think that Dr. Nelson could have made better use of the space provided to her to theorize about which unitary executive is likely to emerge in the future:
1) The one that has been developed as a defensive strategy to protect the powers and policies of the presidency, which moves incrementally so not to arouse those outside the executive branch, and also abides by the norms and routines surrounding unilateralism. For example, there was a process in place for the signing statement. An enrolled bill would go to two places once it was accepted by the White House. First, the OMB circulated a copy to the affected agencies, who could recommend presidential action and ask for language to be added to a signing statement. Also, a copy went to the OLC, which scrutinized it carefully for anything that might negatively effect the constitutional protections for the presidency or for individuals. OLC would send their recommendations to OMB, which would compile all the information together, including a draft signing statement, for the president's consideration. Second, it went to the White House for the president's consideration. His advisors would consider the draft signing statement in light of the compromises the president had made with Congress or interest groups, and then strike some things out or add additional language.
2) The one developed in the Bush administration that is primarily an offensive theory about restoring the presidency to some mythological "king-on-his-royal throne" that existed in the days before Watergate. This unitary executive theory does not seem to care about the long range effects of contemporary action--for instance, the high profile of both the signing statement and the unitary executive theory. These things are regarded as obscure for a reason. What the Bush administration has done is to use the veil of the unitary executive to hide pure unilateralism in the name of politics. Thus with regards to the signing statement, the process that has been in place and worked so well since Reagan has been completely up-ended. For one, when the president makes a challenge in the signing statement, he refuses to explain to anyone exactly what he is objecting to or the constitutional reasons for the objection. For two, the signing statement process itself has been augmented in a negative way. Not only does a bill go to OMB and OLC on its way to the White House, but now it also veers off to the vice president's office, where a "red pen" eviscerates the bill, including provisions that have been carefully negotiated with the Congress, such as the famous case of the signing of the 2005 detainee treatment bill.
I am currently working on an article to be published early next year in a journal that makes this point about the two versions of the unitary executive theory which builds on this fine article by Dean Harold J. Krent, which argues that it is not unitarian values that are being pushed by President Bush, but rather naked unilateralism.
The way the administration has pushed unilateral action in open defiance of the Constitution explains why there have been such high profile defections by leading conservative scholars, such as Jack Goldsmith, Steven Calabresi, Doug Kmiec, and others. Thus it remains to be seen whether the administration has not just set back the cause of restoring the powers of the presidency (despite their open commitments to leave the institution in better shape than they found it), but also whether it has killed the unitary executive. The term has become so polarized and poisoned that it may be in the best interest of any future president to call their defense of signing statements, executive orders, and the like by some other name. The Clinton administration called the unitary executive presidential administration. That just doesn't have the same punch, but it may be what we are talking about a year from now.
