The Catholics Talk Back

I can only believe that it was the Jesuits who wrote this editorial for the National Catholic Weekly. It blasts President Bush for, as the title clearly states, an "Abuse of Office." It blasts the president for approving the use of torture and, more importantly, for "single-mindedly and with strident resolve sought to expand the power of the presidency beyond its constitutional limits."

I say that this had to have been penned by the Jesuits, who normally fall more to the Left than other Catholics. If it wasn't authored by Jesuits, then this article is both too little too late and the height of hypocrisy. The Catholics were a reliable supporter of both Bush runs for the presidency, and frankly the "abuses" identified in this article were things well known before now, so coming out against the President at this late date is...you get the picture.

The author(s) also throw in the signing statement as one of the major abuses of this administration, and in doing so commit numerous errors which is all too common today--almost a cottage industry. The errors are:

• Prior to 2001 the use of the signing statement was a "largely benign instrument of presidential communication," and Bush has "used them to subvert basic constitutional procedures by declaring in his statements which provisions of a law he will enforce and which he will not." As I have noted elsewhere, there is nothing different in how Bush uses the signing statements other than volume. Those who directly preceded President Bush used the signing statement to challenge provisions of law as well as to interpret those provisions that were unclear or ambiguous.
  
• When President Bush refuses to enforce a provision because of its dubious constitutionality, he "implicitly ignores the U.S. Supreme Court's exclusive right to judge the constitutionality of a law." But as we all know too well, if you believe that the Supreme Court has an "exclusive right" to interpretation--one that the other two branches must abide by--then you disregard our system of separated powers, where each branch is "co-equal" and "coordinate."
  
• The author(s) take the statements of Senators Clinton, McCain, and Obama at face value when they either claim not to use the signing statement in the same way as President Bush (Clinton and Obama) or to not use them at all (McCain). We should expect that a President Clinton or Obama will continue to use the signing statement in the same way as each president since Reagan has used them--to reach out to important constituencies, to challenge or refuse defense of defective provisions, or to interpret those provisions that are not clear. And President McCain will break his promise the first bill he gets that contains a signing statement from his Justice Department laying out his obligation to protect the prerogatives of the presidency--or be accused of a derelict of duty.

The author(s) actually do hit on the real problem regarding the "abuses" by the Bush presidency--they write: "The president’s power gains have come at great cost to the constitutional prerogatives of the legislative and judicial branches, which have frequently acquiesced in Mr. Bush’s consolidation of power..." If the Republican-controlled Congress would have challenged the Bush administration from 2001-2006 in the same way they challenged the Clinton presidency--or somewhere close to the way they challenged Clinton, then we may have never learned about the way the Bush administration has used the signing statement, the same way we never learned about how Clinton used them (despite my best efforts). But the Republicans chose instead to be the lapdog to the president, serving his every need, which accounts for their current position in the minority. I hope that as the Democrats step up their challenges to President Bush, the press won't take President Bush's (or the Republicans in the minority) word that this "do-nothing" Congress is only concerned with driving up the polarization in American politics or is somehow not concerned with the safety of Americans from "those abroad who want to do us harm here."

Pipe dream, I know.

Do You Hear What I Hear?

I caught part of Hillary's address to the Newspaper Association of America today, whose annual meeting was in DC and a perfect opportunity for all the candidates to come by and woo the press. And one thing that I heard fairly clearly was Hillary's support for the unitary executive--granted not the way that President Bush interpreted it--but unitarian nonetheless. Mrs. Clinton focused her talk on "the power and promise of the presidency." And from there, she hit right on things that are important to unitarians. She said: "Our Constitution instructs the president to take care that the laws be faithfully executed and calls upon the president to swear to preserve, protect and defend the Constitution of the United States." And then: "The president is the one elected representative of the whole American people...the only constitutional office holder with the power to speak for all of us and with the potential to unify us in the service of our national interest." It is straight from unitary theory that two of the three important constitutional powers of the presidency comes from 1) the "take care" clause, giving the president the power to interpret the meaning of law for subordinates as well as to direct them in the exercise of executive power, and 2) the "oath" clause, which obligates the president to refuse defense or enforcement of laws determined to be unconstitutional. The third, of course, is the "vesting" clause, which gives to the president executive power. And it is important for unitarians to point out that the president is the only political officer accountable to all of the people, which serves as the basis for giving the president responsibility for how laws our carried out.

Among the things she says she will do once elected president, that is different from President Bush:

• "I'll end the use of signing statements to rewrite the laws that Congress has passed..." But note she did not say she would end the practice of signing statements. She says she will end the practice of using signing statements to "rewrite the laws." But President Bush does not use the signing statement to "rewrite" law, this is what his critics charge, thus easy to say you won't behave this way. But it does not say anything about ending the practice of using signing statements.
• "I will end the practice of using executive privilege as a shield against the public's right to know and congress' duty to oversee the president." Just like the signing statement, she qualifies this. She won't end the practice of using executive privilege, just using it to blunt the public and Congress' right to know. But not an end of executive privilege in any and all circumstances, which means that she leaves the door open to use executive privilege, and when she does use it, her critics are going to charge that she is trying to hide something.
• And the cream of the crop: "I will sign executive orders ending the war on science, ordering the closure of Guantanamo, reversing many of the anti-labor provisions" of the Bush administration. But using an executive order to implement policy means that these are things she will not get the Congress to come on board with, and thus bypasses the stubbornness of Congress and implements policy unilaterally. How can that be any other thing but unitarian? She will work with Congress only to a point. Where Congress refuses to playball, she will go her own way.

I fully anticipate that if Mrs. Clinton wins the presidency, she will behave just like her husband, who used the executive branch to accomplish policy objectives once the Congress fell to the Republicans. Unitary executive theory does not say that it applies to a president who uses the executive branch agencies to block the issuance of regulations. It applies to a president who uses the executive branch agencies to secure political and constitutional objectives when faced with a Congress that won't play nice. I can't see how Mrs. Clinton is any different from President Bush, at least in the way they view the role of the president and presidential power in general.

In other news, Mrs. Clinton also continues to say ridiculous things. Apparently still wishing to emphasize how she is a "commoner" and not an "Obama-elitist," she brings up the "nobody knows the trouble I've seen" days of her youth, which is farcical:

As a young girl, I could not go to certain colleges, compete for certain scholarships, participate, if I'd had the sporting ability, in certain sports, or obtain some kind of financial aid for playing them. There were certain jobs that were closed to me and other young women. And the horizons were not quite as broad as those for my brothers. I grew up in a middle-class family, at a time when our nation was investing in the middle class.

Is she serious? What "certain colleges" was she excluded from? She went to Wellesley College as an undergraduate and then Yale for law school. What could she possibly be speaking about? Who wouldn't want that kind of problem? Then she says--and this is a hoot--that she could not get an athletic scholarship, although she didn't participate in sports? What? And then she claims that certain jobs were closed to her "and other young women." My guess is that the "other young women" had a hard time finding employment, not Mrs. Clinton--who graduated Yale Law and worked alongside hubby Bill in the Watergate investigation. If these are her definitions of hard times, who wouldn't want hard times?

The Unitary Executive Was In Da House (Senate, Actually)

Last week, the Senate Environment and Public Works held a hearing to consider the nomination of David Hill, currently the General Counsel for the Department of Energy, to be the General Counsel and Assistant Administrator of the EPA (you can't get a transcript of the hearing, but if you need a photo, the Committee is quick to oblige). This was a rarity in the Senate--that is, the actual consideration of a presidential nominee to any executive branch agency.

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?