Alito and the "unitary executive"
In these days of imperial presidential power, the new buzzword around the Judiciary Committee is the unitary executive and how Scalito feels about it. When I was watching the tail end of the testimony yesterday it seemed that Alito gave Dick Durbin the slip when asked about this topic, explaining that the unitary executive is simply the theory that the President, as head of the executive branch, is empowered to speak for and direct the positions of officials in all departments and levels of the executive. Nothing sinister, nothing to get excited about. Durbin seemed to take this explanation at face value and moved on to his next point.
The real problem, however, is not the unitary executive, but another doctrine the Bushies are fond of, commonly known either as "departmentalism" or "coordinate construction" . This doctrine, which also sounds unexceptional, holds that all branches of the government, and not just the judiciary, are required to follow the Constitution, and to make sure they don't do anything that violates it. Hard to argue that the President shouldn't follow the Constitution, right?
The problem is when you combine the President's obligation to follow the Constitution with a President who believes that there are essentially no constitutional limits on presidential power, and that the Congress has no authority to limit presidential power. In that case, as enunciated in hundreds of signing statements (bogus statements issued in conjunction with signing a bill into law, basically the Pennsylvania Avenue version of signing with your fingers crossed), even when Congress passes a law and the President signs it, if it contains assertedly invalid limitations on the President's power, it is invalid and the President's power is in no way constrained.
Thus, when Bush negotiated a limit on the government's authority to torture people it doesn't like, and Congress passed a law in good faith reliance on this agreement, Bush issued a signing statement that he would construe it, "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." In other words, he would continue to do what he wants, regardless of what the law says or what he agreed to.
The other trick that ScAlito has been using on this topic is that whenever anyone asks him about the President's obligation to obey the law he agrees that of course the President is required to obey the Constitution and laws. Again, since the Constitution is superior to any laws enacted by Congress, and we know that they claim that the Constitution prohibits any laws enacted by Congress limting the power of the President, this agreement is really saying the opposite: there is nothing the Congress can do to stop the President from what he wants to do
It's becoming clearer and clearer that if Alito is confirmed he will be a reliable tool for President Palpatine and his unitary executive.
The real problem, however, is not the unitary executive, but another doctrine the Bushies are fond of, commonly known either as "departmentalism" or "coordinate construction" . This doctrine, which also sounds unexceptional, holds that all branches of the government, and not just the judiciary, are required to follow the Constitution, and to make sure they don't do anything that violates it. Hard to argue that the President shouldn't follow the Constitution, right?
The problem is when you combine the President's obligation to follow the Constitution with a President who believes that there are essentially no constitutional limits on presidential power, and that the Congress has no authority to limit presidential power. In that case, as enunciated in hundreds of signing statements (bogus statements issued in conjunction with signing a bill into law, basically the Pennsylvania Avenue version of signing with your fingers crossed), even when Congress passes a law and the President signs it, if it contains assertedly invalid limitations on the President's power, it is invalid and the President's power is in no way constrained.
Thus, when Bush negotiated a limit on the government's authority to torture people it doesn't like, and Congress passed a law in good faith reliance on this agreement, Bush issued a signing statement that he would construe it, "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." In other words, he would continue to do what he wants, regardless of what the law says or what he agreed to.
The other trick that ScAlito has been using on this topic is that whenever anyone asks him about the President's obligation to obey the law he agrees that of course the President is required to obey the Constitution and laws. Again, since the Constitution is superior to any laws enacted by Congress, and we know that they claim that the Constitution prohibits any laws enacted by Congress limting the power of the President, this agreement is really saying the opposite: there is nothing the Congress can do to stop the President from what he wants to do
It's becoming clearer and clearer that if Alito is confirmed he will be a reliable tool for President Palpatine and his unitary executive.
posted by Jack McCullough at 9:15 PM
3 Comments:
Jesus Christ. You waited a month to tell us you have a blog? I'm hurt. But I'll read.
Greg.
I just found out as well...I am ordering that we open a formal inquiry into why this was hidden for so long!
back on topic...
I finally got a chance to watch Scalito last night. It appears I caught the senate in one of its more "gentlemenly" moments..as the questioning was often very tame and the follow up questions not strongly offered.
What strikes me about the confirmation hearings in general, is that by and large, the nominee really doesn't have to answer anything...
"I can't comment on that as it might come before the court"
"I would have to see a specific case with all the facts to comment on that"
"I didn't say 1+1 = 2 I said 3-1 = 2"
WHat kills me is, unlike Roberts, Scalito has a record..he has opinions that are public record that clearly state his neo-conservative views, but the republican propaganda machine tries to make you belive that he represents "main stream" America..
ALl I ask is that the words of Jason varitek - the Dem's "Cowboy Up" and get some cojones for this nomination and the 2006 elections.
what do you think the first thing Bush will do if he gets Scalito in?
I thnk he will go for the removal of the two term limit, citing that...
"we are at war...."
"if you dont let me change this, their will be mushroom clouds all over the USA"
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