Bush & the Unitary Executive Doctrine

Bush & the Unitary Executive Doctrine Presentation by Jennifer Van Bergen

The Founders: Unitary vs. Plural • A member of the Convention “moved ‘that the Executive consist of a single person’ . . . Madison then hinted that the Convention should first decide what powers to vest in the executive before determining whether it should be unitary or plural.” Jack N. Rakove, Original Meanings

Kelley’s Components of Unitary Executive Doctrine • Power of the President to remove subordinate policy-making executive officials at will; • Power of the President to direct the manner in which subordinate officials exercise discretionary executive power; and • Power of the President to nullify such officials’ exercises of discretionary power.

Kelley says: Power to nullify subordinate officials’ exercises of discretionary power Actual use by Bush: Use of presidential signing statements to nullify portions of laws the President signs. Third Component

Unitarian – President can do what he likes. Non-Unitarian – There are boundaries and limitations to executive power. Unitarian vs. Non-Unitarian

Proponents of Unitary Executive Theory • Mostly championed by the founding members of the Federalist Society, “a group of conservative lawyers who nearly all worked in the Nixon, Ford, and Reagan White Houses and who understood the type of political climate the president operated in” and wanted to protect presidential prerogatives. Kelley, Rethinking Presidential Power

Nixon to Bush • The Unitary Executive doctrine arose in response to congressional limitations of presidential powers in the aftermath of Watergate. Kelley, Rethinking Presidential Power • Rumsfeld, Cheney, Wolfowitz, and Powell all got their first taste of Washington in the Nixon administration. • Cheney: "I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," he said after a year in office, calling it "wrong" for past presidents to yield to congressional demands. Dana Millbank, Washington Post

Presidential Direct Action • Carter made innovative use of executive orders. • Reagan used national security directives as well as signing statements. • Clinton used executive orders and proclamations. • Bush uses signing statements.

Signing Statements • A statement issued by the President upon signing legislation into law: * to provide commentary * to provide the president’s interpretation of the language of the law * to announce constitutional limits on implementation of certain provisions * to indicate directions to executive branch officials as to how to administer laws

Presidential Veto – done openly, engaging press & electorate Requires 2/3rds vote of Congress to override. Signing Statement = a covert line-item veto to attempt to stealthily nullify a portion of a properly passed law Line-item vetoes held unconstitutional in INS v. Chadha. Veto vs. Nullification

President has the power and the duty to interpret the Constitution when vetoing or enforcing the laws. Power has the duty not to undermine his own office. “Take Care” clause – President must take care that the laws are faithfully executed “Oath” clause – President must preserve, protect, and defend the Constitution. President may not violate the laws. An “indictable offense” may be grounds for impeachment. Presidential Power to Interpret Laws

Indictable Offense Strict constructionists argue that impeachment requires an “indictable offense.” “The phrase [high crimes & misdemeanors] is the subject of continuing debate, pitting broad constructionists, who view impeachment as a political weapon, against narrow constructionists, who regard impeachment as being limited to offenses indictable at common law.” U.S. Senate web site

Meese’s 3-Part Strategy Reagan’s Attorney General, Edwin Meese III, had a 3-part strategy: 1. to appoint of judges who supported expanded executive powers, 2. to legal challenge intrusions of presidential authority, 3. to provide president opportunity to more actively engage in creation of legislation (signing statements)

Alito’s Memo • In a 1986 memo, Alito, while Deputy Asst. AG for Reagan working in the Office of Legal Counsel, made “a preliminary proposal for implementing the idea of making fuller use of Presidential signing statements” to “increase the power of the Executive to shape the law” and “help to curb some of the prevalent abuses of legislative history.”

Legislation • Bicameral congressional consideration and passage • Presentment to President • Signing or Veto • If vetoed, returned to Congress & must obtain 2/3rds vote of both houses to become law • Presidents may not legislate.

President may not engage in acts that violate the Constitution, violate separation of powers, infringe upon Congress or judiciary, or avoid congressional or judicial oversight or scrutiny. Protects President from enforcing things he independently determines are unconstitutional. Kelley, Rethinking Presidential Power Oath Clause:President must preserve, protect, and defend the ConstitutionU.S. Constitution, Art. II, sec. 3

President cannot decline to enforce laws duly passed by Congress. Executive branch agencies must execute the law according to President’s wishes Kelley Take Care Clause:President must take care the laws are faithfully executedU.S. Constitution, Art. II, sec. 1.

Torture Memo: Commander-in-Chief Powers • “Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield." Deputy Assist. AG John Yoo, DOJ Memo to White House Counsel Gonzales

President's Statement on H.R. 199, the "USA PATRIOT Improvement and Reauthorization Act of 2005" • The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. • The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.

McCain (Anti-Torture) Amendment: President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, & Pandemic Influenza Act, 2006" • The executive branch shall construe [the provision] relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branchand as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks. • The executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action [on detainee cases], including applications for writs of habeas corpus.

Intelligence Authorization Act of 2002 H.R. 2883 • Bush wrote in his signing statement: “Regrettably, one provision of the Act falls short of the standards of comity and flexibility that should govern the relationship between the executive and legislative branches on sensitive intelligence matters and, in some circumstances, would fall short of constitutional standards. “

Intelligence Authorization Act: Signing Statement • Section 305 purports to require that reports submitted to the congressional intelligence committees by the executive branch on significant anticipated intelligence activities or significant intelligence failures always be in written form, with a concise statement of facts pertinent to the report and an explanation of the significance of the activity or failure. • Section 502 of the National Security Act as amended by section 305 of the Act shall be construed for all purposes, specifically including for the purpose of the establishment of standards and procedures under section 502(c) of the National Security Act by the Director of Central Intelligence, in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. Section 502 shall also be construed in a manner consistent with the statutory responsibility of the Director of Central Intelligence to protect intelligence sources and methods and other exceptionally sensitive matters.

Bush First-Term Signing Statement Constitutional Objections Primary Reasons for Rejecting Legislative Requirements • Power to supervise the unitary executive 82 • Exclusive power over foreign affairs 77 • Sole control over the authority to make recommendations to Congress 54 • Authority to determine and impose national security classification and withhold information 48 • Actions taken to execute constitutional duties 40 • Keep secret deliberate processes of the executive branch 39 • Commander-in-chief powers 37 • Separation-of-powers claims based on INS v. Chadha24 • Sole power over appointments 23 • Rejection of mandatory report or approval from Congress 22 • Unimpeded authority to conduct negotiations for foreign affairs 15 • Equal protection requirements of the Due Process clause of the Fifth Amendment 15 • Duty to take care that the laws be faithfully executed 9 • Rejections of involvement of congressional officers under Bowsher v. Synar 6 • Power to require opinions in writing of executive officials 6 • Bicameralism and presentment clause 5 • Federalism limits imposed by Printz v. United States 3 • Total 505

Signing Statements: Summary • Bush’s signing statements are a form of unconstitutional presidential line-item veto, an evasion of presentment clause requirements, a means of engaging in unconstitutional presidential law-rewriting or nullification, and an attempt to create a body of authoritative declaratory judgments without judicial review & with little congressional recourse.

Unitary Executive:Summary • The Unitary Executive doctrine is “nothing short of a radical effort to re-shape the constitutional separation of powers and evade accountability and responsibility for following the law.” Senator Patrick Leahy (D-VT)

Bush & the Unitary Executive Doctrine