The Bush administration has been most emphatic about the theory of the unitary executive. This theory, as you will recall, was developed in the Reagan administration as a way to justify unilateral actions and near-absolute control over the executive branch and the actions of its agents. The theory itself appeared in each administration, in one form or the other, up through the current Bush administration, which went professional with the ideal.
President Bush made sure to defend the many actions he took by mentioning the unitary executive in his public pronouncements. Sometimes he repeated the term to make sure we all got the point. For example, when he signed this Justice Department appropriations bill, President Bush mentioned the "unitary executive" eight separate times.
From 2001-2006, the term appeared in signing statements, executive orders, and other public pronouncements. In total, President Bush used the term 146 times, with an average each year of 24. But then came the 2006 midterm elections and the Republican losses in the House and Senate, giving the president true divided government for the first time in his administration.
Now that 2007 has ended, what can be said about the number of times the unitary executive made into various documents? Before I answer this, let me repeat my hunch that something has happened in the Office of the Vice President that has muted its effect on the executive branch. As we know now, the vice president had hijacked the process whereby a signing statement gets added to a bill the president signs. The vice president was also out in front in challenging the Congress as well as pushing for expansive presidential powers. But in the last year, very little has been written about Cheney or Addington outside the articles that look back on the glory days of unified government.
In 2007, the term "unitary executive" did not appear in any public pronouncement. Where he averaged 24 uses per year through 2006, he dropped to 0 for 2007. As I noted before, when a president's aggressiveness sparks a collective outrage, it has an effect on the president's actions. Thus all that has been written about President Bush's defense of the unitary executive has had the effect of forcing him into silence about his beliefs. It is an interesting turn of events. We shall see if the term reappears in 2008 as the eyes of the country turn towards the election and inauguration of the 44th President.
Wednesday, January 09, 2008
Tuesday, January 08, 2008
Constitutional Powers on the Cheap
On New Years Day, I wrote about President Bush's attempted use of the "protective return" pocket veto, and I referred to Professor Robert Spitzer's excellent work on the matter. Fortunate for us, Professor Spitzer has two pieces on this subject published today--one at the Los Angeles Times and the other at the History News Network.
There are a couple of interesting points over and above what I documented regarding this action. First, when past presidents have executed this action, they claimed precedent in the "Pocket Veto Case," a 1929 Supreme Court case that accepted Calvin Coolidge's pocket veto even though the Congress had delegated to an agent the responsibility of receiving messages from the president. You may recall that even though the House adjourned, Speaker Pelosi left the Clerk in charge to receive messages from the White House. The administration, like those before, argued that leaving a flunky behind does not constitute "in session." Furthermore, when Presidents Bush I, Clinton, and now Bush II defend the practice of the protective return, he cite this case. The problem is, as is often the case, this is an incomplete recitation of precedent. Not long after the "Pocket Veto Case," the Supreme Court addressed the issue of the pocket veto again. In Wright v US, the Supreme Court overturned its decision in Pocket Veto. This time, the Supreme Court supported the right of the Congress to designate a stand-in to receive messages from the president.
The second point comes near the end, where Professor Spitzer addresses why President Bush, in his last year of his presidency, advanced the protective return. His most compelling reason is to advance the president's constitutional powers "on the cheap." As my colleague and mentor Ryan Barilleaux has argued, this fits into a case of "venture constitutionalism," the president's persistent attempt to push the boundaries of Article II. This has underscored a number of actions this administration has taken over the last 7 years of its presidency. And for the most part it has been successful because the Congress has failed to challenge, which is what defines success from failure. Those who make this argument correctly note that a president will be successful at advancing power so long as it does not unite the collective will of the Congress. It is for this that I may take issue with Professor Spitzer. As we know, President Bush issued the pocket veto on a bill that had unanimous support in both chambers of Congress AND had the blessing of the administration until it vetoed it at the last minute. I think more to the point, the administration was caught in an ever more present vice that presidents find themselves in--the vice that pits domestic politics on one side and international politics on the other. Realizing that signing the bill would pick a fight with the Iraqi and other foreign governments and an overt veto would cause relationships across Party to form, the administration attempted to declare a pocket veto and then see "where the chips fell." This way they can say they made an attempt to stop the bill at the last minute while allowing the bill, in the end, to become law.
Nonetheless, Professor Spitzer's articles should be the authoritative, end all, be all of vetoes, pocket vetoes, and protective return pocket vetoes.
There are a couple of interesting points over and above what I documented regarding this action. First, when past presidents have executed this action, they claimed precedent in the "Pocket Veto Case," a 1929 Supreme Court case that accepted Calvin Coolidge's pocket veto even though the Congress had delegated to an agent the responsibility of receiving messages from the president. You may recall that even though the House adjourned, Speaker Pelosi left the Clerk in charge to receive messages from the White House. The administration, like those before, argued that leaving a flunky behind does not constitute "in session." Furthermore, when Presidents Bush I, Clinton, and now Bush II defend the practice of the protective return, he cite this case. The problem is, as is often the case, this is an incomplete recitation of precedent. Not long after the "Pocket Veto Case," the Supreme Court addressed the issue of the pocket veto again. In Wright v US, the Supreme Court overturned its decision in Pocket Veto. This time, the Supreme Court supported the right of the Congress to designate a stand-in to receive messages from the president.
The second point comes near the end, where Professor Spitzer addresses why President Bush, in his last year of his presidency, advanced the protective return. His most compelling reason is to advance the president's constitutional powers "on the cheap." As my colleague and mentor Ryan Barilleaux has argued, this fits into a case of "venture constitutionalism," the president's persistent attempt to push the boundaries of Article II. This has underscored a number of actions this administration has taken over the last 7 years of its presidency. And for the most part it has been successful because the Congress has failed to challenge, which is what defines success from failure. Those who make this argument correctly note that a president will be successful at advancing power so long as it does not unite the collective will of the Congress. It is for this that I may take issue with Professor Spitzer. As we know, President Bush issued the pocket veto on a bill that had unanimous support in both chambers of Congress AND had the blessing of the administration until it vetoed it at the last minute. I think more to the point, the administration was caught in an ever more present vice that presidents find themselves in--the vice that pits domestic politics on one side and international politics on the other. Realizing that signing the bill would pick a fight with the Iraqi and other foreign governments and an overt veto would cause relationships across Party to form, the administration attempted to declare a pocket veto and then see "where the chips fell." This way they can say they made an attempt to stop the bill at the last minute while allowing the bill, in the end, to become law.
Nonetheless, Professor Spitzer's articles should be the authoritative, end all, be all of vetoes, pocket vetoes, and protective return pocket vetoes.
Subscribe to:
Posts (Atom)