The Unitary Executive

I've been turning the implications of the administration's broad new view over in my head all day. I think to grasp how stunning this is, you need to listen to David Rivkin's defense:

David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."

That makes a certain kind of sense, I suppose, and also offers an explanation as to the meaning of the "unitary executive" metaphor. The executive branch is, clearly, composed of many people. But it's personified by a single president -- the unitary executive. The US Attorneys who might serve a contempt citation are part of this executive. They can't enforce rulings against the decisions of the head of that unitary executive because they are part of it. Here's the relevant Richard Nixon interview with David Frost:

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

It's disturbing stuff. In an ideal world, enough GOP members of congress would be more jealous of their institutional powers than eager to back a co-partisan, and we'd see some veto-proof legislation getting passed to address this. I'm not optimistic.

Comments

L'État, c'est moi!

Posted by louis | July 20, 2007 4:00 PM

Worth noting that Rivkin isn't going nearly as far as Nixon did in that interview.

The unitary executive theory doesn't claim the unitary executive is able to disregard Congressional lawmaking authority. It just claims the executive branch has no voice but the President's.

Nixon is espousing a far more absurd idea, in constitutional terms.

Posted by Petey | July 20, 2007 4:00 PM

"The US Attorneys who might serve a contempt citation are part of this executive. They can't enforce rulings against the decisions of the head of that unitary executive because they are part of it."

They can enforce such rulings, but they don't have to. Whether or not to do so is a political decision by the executive branch.

Recourses are Congress enforcing it's own contempt citation, or impeaching the President and/or Attorney General.

Posted by Petey | July 20, 2007 4:07 PM

It's a strike when I say it's a strike. Or, it's traveling when I say it's traveling. Good thing we don't have referees betting on games, particularly ones they referee.

Posted by Jim | July 20, 2007 4:09 PM

but petey, in practical terms, the effect is the same, since bush reserves the right to obviate congressional legislation through signing statements rather than vetoes, and then, through this theory, blocks any investigation of a failure to see the laws faithfully executed.

because the reason i was going to post is that we have now reached, at last, the ultimate expression of cheneyism in this administration, which is a world view informed by the notion that the only thing that nixon did wrong was to fail to burn the tapes.

i have long been in the camp of those who think that impeachment is a waste of time given the authoritarian nature of contemporary republican congress-people, but with this, i begin to change my mind.

as for matthew's not-optimistic view, you think? they don't care if they are hypocrites, they don't care what kind of precedent they are setting (because they don't care if they are hypocrites), and they don't care about the constitution.

Posted by howard | July 20, 2007 4:10 PM

and petey, now to turn to your 4:07 (written while i was composing my 4:10), no.

the bush theory is that they "can't," period, because it's all about the president. choice doesn't enter into it.

yes, congress has other alternatives, but that's a different aspect of the problem.

Posted by howard | July 20, 2007 4:12 PM

There's a term for the situation Nixon describes and that name is fuhrerprincip.

Posted by Nick Kaufman | July 20, 2007 4:12 PM

The principle assert here isn't new (it's the same principle asserted 23 years ago by the Reagan administration). And it doesn't have anything to do with the Nixon quote. The unitary executive isn't about the separation of powers.

And it isn't clear why someone who believes in co-equal branches of government would think that "veto-proof legislation" would be a solution to an interbranch struggle. Congress doesn't win by stamping its feet, holding its breath, or passing legislation aggrandizing its power.

Posted by Thomas | July 20, 2007 4:23 PM

Of course, this is just a different flavor of the who-watches-the-watchers problem that led to the rise (and fall, and rise and fall again) of the Independent Counsel, with all of its pros and cons. Of course, presumably Bush's view is that such a beast, insofar as it purports to wield executive authority, is unconstitutional under the Unitary Executive theory. (The Supremes disagreed, although I imagine that's a precedent ripe for overruling with the current lineup of Presidential bootlickers.)

Posted by Glenn | July 20, 2007 4:24 PM

"the bush theory is that they "can't," period, because it's all about the president. choice doesn't enter into it."

No. They investigated the Plame leak, even referring it to an independent counsel. They did that for political reasons, and they're not going to investigate Miers for political reasons.

The unitary executive is making a political decision not to investigate Miers. Nothing in the unitary executive theory says they "can't" investigate Miers.

Posted by Petey | July 20, 2007 4:27 PM

The Rivkin presumption (any position for which David Rivkin is cited positively is insane) is in effect. Even Tony Blankley called the position "astonishing" (although he refused to call it preposterous) on the Diane Rhem show today. The choices: 1) arrest Miers and try her in the House or Senate; 2) impeach Bush and try him in the Senate; or 3) do nothing. Want to guess how Rove is betting?

The democrats are going to have to make Bush to seem like he's hiding something, not calling this a constitutional crisis but Bush's choice and it is Congress' duty to follow the constitution. Its going to be a long summer for the staff lawyers.

Posted by Peter Driscoll | July 20, 2007 4:29 PM

I don't think it makes any sense at all to call anyone in the executive branch an emanation of the President's will. If anyone is an emanation that way, it is the President himself or herself, because he or she is there to carry out the laws of Congress, which makes the President an emanation of Congress' will, in a sense.

All the officers of the government are answerable to the laws, to the Constitution and to Congress (remember, Congress establishes the rules for ALL officers of the government) and above all to the People. The President is in essence a facilitator. The executive branch is NOT his or her fiefdom.

The Unitary Executive is pure fiction.

Posted by epppie | July 20, 2007 4:33 PM

petey, let's rephrase it: this view of the unitary executive is that once the president decides something, the entire executive branch has decided it.

thus, in this case, the US attorney doesn't have a choice (according to this theory).

and if bush had asserted executive privilege in the plame investigation, by this theory, that's all it would have taken to end it.

Thomas, they dug up a piece of waste paper that Ted Olson scribbled on 23 years ago; since the matter was resolved, it was never tested or acted upon and no one has officially acted upon this basis until now.

further, Thomas, co-equal branches does not mean that no branch can ever make a final determination about something....

Posted by howard | July 20, 2007 4:34 PM

What the Bushies are doing here is exactly what Nixon did when he had Bork fire Archibald Cox. Nixon's actions were technically legal, but responsible Republicans back then made it politically impossible for Nixon to get away with blocking an investigation into the administration's crimes. What will Republicans do today?

Posted by rea | July 20, 2007 4:44 PM

"U.S. attorneys are emanations of a president's will."

Uh, yeah, if only. Bushies can only wish that U.S. attorneys are gaseous exudations. Come to think if it, that's what I think of whenever I hear a Bush speech. . .

Posted by RSA | July 20, 2007 4:45 PM

"What the Bushies are doing here is exactly what Nixon did when he had Bork fire Archibald Cox."

Yup.

It's all perfectly constitutional, but there should be a political price.

Posted by Petey | July 20, 2007 4:47 PM

Howard-- I too have been reluctant abou impeachment. I was perfectly happy to let the Congress investigate. The facts would come out and hang these bastards, I thought. But if they can't investigate, and he won't carry out the laws, what to do? I can only conclude that they must impeach him. Congress has no divisions as Old Joe might say. This is about power, conceived by a man who got an apology from a man he shot in the face. This is about pure power and if the Congress doesn't play hard, they won't be in the game.

On top of everything else, Cheney is going to be President for real on Sat. while Bush has a colonoscopy. Sweet Jaysus my gramma would say.

Posted by Peter Driscoll | July 20, 2007 4:47 PM

Uh, no, Rifkin doesn't make any sense at all.

US Attorneys are supposed to uphold the law, which is created by the Legislative (i.e., lawmaking) Branch. The Executive executes, but what they are supposed to execute is the law passed by the representatives of the people.

Nothing in there about US Attorneys receiving the "emanations" of the President. In fact, the whole idea would have been considered looney until just recently, but when astrologers began setting the calendar for an aging B-movie actor based on the stars...well, the sky's the limit!

What is not/i> as American as apple pie is the idea that Bush should be allowed a "Triumph of the Will". If you don't know why, google it.

Posted by serial catowner | July 20, 2007 5:04 PM

Hmmm...sorry about that. Don't know if I can fix it, but will try. Darn italics.

Posted by serial catowner | July 20, 2007 5:07 PM

bush reserves the right to obviate congressional legislation through signing statements rather than vetoes, and then, through this theory, blocks any investigation of a failure to see the laws faithfully executed.

Those of you - Dem or Repub. - who still think impeachment ought not be considered are going to look terribly ridiculous in a few decades - presuming the Memory Hole hasn't swallowed everything by then.

Posted by jonnybutter | July 20, 2007 5:09 PM

Though the post is not about impeachment, publius grasps the key point as he paraphrases Benen: "the executive can’t be the final arbiter of its own power."

Not terribly hard to understand.

Posted by jonnybutter | July 20, 2007 5:22 PM

This is reason 100 why I have come around from thinking "they should be impeached, but they will never be convicted in the Senate so why waste the time and resources" to "we simply have to impeach them, regardless of the chances for conviction." Because, honestly, if this Vice President and President are not deserving of impeachment, it is hard to imagine a scenario where such officials ever would be.

This example has finally made me understand why the theory of "unitary executive" means "executive does as he pleases." I have never delved off into it very deeply, so my reaction has always been "so you're unitary, so what-- why does that make you above the law?" I realize now that the reason it makes him above the law is once he says "NO" there is no one left to "execute" the law. "Unitary executive" is another term for "elected dictator." The Romans had those occasionally, but I don't think that was the intent of the framers of the Constitution.

Posted by Jeff in Texas | July 20, 2007 5:42 PM

No, the executive can't be the final arbiter of his own power, but neither can the legislative branch be the final arbiter of its own power, or the judicial branch of its own power. To "solve" the problem of executive power most of you would simply make the legislative or judical branch preeminent, moving the problem without creating a solution.

Jeff, it remains clear that you haven't done much thinking about the "unitary executive."

Posted by Thomas | July 20, 2007 6:28 PM

"Emanations of the president's will" -- that's simply the way Mussolini used to talk.

But I suppose it's also true che Bush ha sempre ragione.

Posted by Gene O'Grady | July 20, 2007 6:35 PM

No, the executive can't be the final arbiter of his own power, but neither can the legislative branch be the final arbiter of its own power, or the judicial branch of its own power.

Which is why, when Bush meets a congressional subpoena with an assertion of exective privilege, the matter gets presented to the judicial branch for resolution . . .

Posted by rea | July 20, 2007 6:50 PM

the matter gets presented to the judicial branch for resolution

By whom?

neither can the . . . judicial branch [be the final arbiter] of its own power

Sure it can. Our legal system rests on the judicially derived principle that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison.

The unitary executive says, nyah nyah, you can't get your hands on me to get me in front of the court and have the law pronounced over me.

Perhaps fortunately for the unitary executive as well, the judicial power of the United States has also arbited itself out of the business of adjudicating non-justiciable political questions such certain disputes between the other two branches. (But see Bush v. Gore)

Posted by UN Plaza | July 20, 2007 7:53 PM

To "solve" the problem of executive power most of you would simply make the legislative or judical branch preeminent, moving the problem without creating a solution.

Of course rea is correct that the resolution is in the judicial branch, which highlights how moronic Thomas' implicit argument is. Does this mean that the judiciary is 'preeminent''? No, it means that the judiciary is doing what a judiciary does. 'Co-equal' doesn't mean 'equivalent'. Mysteriously eliding the function of each branch conjurs a problem which isn't actually there.

Once you get back to the real world, and consider what each branch's function is, and recall on whose behalf each branch is supposed to function (the People, remember?) this Executive Privilege issue is not that hard to figure out. David Kurtz puts it well:

Presidents do have a strong interest in this principle. But the President's interest, in this instance, is not in line with the public interest. In fact, executive privilege offers the President and his advisers a perverse disincentive to look after the public interest. Isn't the prospect of public exposure of hare-brained ideas, controversial proposals, and malfeasance and misdeeds the very sort of incentive the public wants looming over the President and his advisers, a dagger of accountability?

(...)

Generally, the purpose of a privilege such as attorney-client privilege or doctor-patient privilege is to preserve a relationship that society puts more value on than enforcing the law. There is value in a client being able to fully and completely disclose their legal problems to her attorney without fear of prosecution. There is value in a patient being able to be honest and forthright with her physician without legal repercussion.

Still, there are limits to the privilege. The attorney-client privilege cannot be used to perpetuate a fraud. The doctor-patient privilege does not apply when the doctor has a reasonable apprehension that the patient may cause himself or another serious physical harm. As a society, we have placed a high value on certain relationships, placing them to a limited degree outside of the law, but only up to a certain point, at which time other values become paramount.

So back to the President and executive privilege. If a privilege is intended to resolve a conflict between competing interests in favor of the more important interest, then what interest is executive privilege protecting? There is, it seems to me, only one interest at stake: the public interest. The President is supposed to be acting in the public interest, and so are his advisers. The public disclosure of internal White House deliberations allows the public to hold the President and his advisers accountable to the public interest. If there is a legitimate competing interest here, I don't see it.

Some will argue that without executive privilege the President could be subject to harassment from Congress, that he would never get anything done because of constant subpoenas and hearings, that the effective carrying out of his duties could be undermined. But that's a different argument from the need for the President to get free and unfettered advice, and in any event, a court could resolve issues of harassment without having to grant a broad executive privilege. The scope of and burden imposed by subpoenas is resolved in courts every day.

I fully recognize that there is a basis in law for executive privilege. But both the legal justification for executive privilege and the policy justification rely mostly on the mistaken assumption that the public interest is served by the President being able to avoid public scrutiny in the execution of his public duties.

It's well past time to revisit that assumption.

Posted by jonnybutter | July 20, 2007 8:15 PM

I'm not optimistic either. I'm furious and ... this is pointless.

I hate psuedo-intellectual blogs with no passion.

This is not a scholarly exercise. It's diversion.

Posted by owenmeaney | July 20, 2007 9:10 PM

Matthew overlooks the real scary stuff here.

The GOP does not believe in Unitary Executive theory for all presidents. They believe in the Unitary Executive only for GOP presidents. When we have a Democratic president they want to strip him off all power.

This is what makes these people dangerous. They want dictatorial powers for themselves and themselves only.

Posted by DonB | July 20, 2007 11:09 PM

These theorists who speak of "emanations of a president's will" explain why less sophistic thinkers like Sara Taylor get confused, and think they've sworn an oath to the President, instead of to the Constitution. (And I do mean 'sophistic', not 'sophisticated'.

How is it, exactly, that officers who must be confirmed by Congress, serving in a post created by act of Congress, and tasked with enforcing the laws enacted by Congress are purely "emanations of a president's will"?

Posted by biggerbox | July 20, 2007 11:23 PM

Thomas--

I have not given the unitary executive much thought because it is an absurd theory of the executive's place in government, as evidenced by the very ends to which it is put. Any theory that purports to vest in the executive practically limitless power has no legitimate role in discussions of our government. My point was that it is enlightening to see the internal logic of the theory laid out so starkly.

Posted by Jeff in Texas | July 20, 2007 11:26 PM

IANAL, but the Youngstown decision seems applicable here as a rebuttal to the unitary executive theory: that's to say, presidential power is fundamentally faceted, and the unitary executive theory is ever so much bullshit when dealing with executive functions that are legally prescribed.

Of course, Youngstown may end up being overturned 5-4, with Kennedy offering a whiny, paternalistic credo of a concurrence.

if this Vice President and President are not deserving of impeachment, it is hard to imagine a scenario where such officials ever would be.

If Bush and Cheney aren't impeached, then you might as well tear that bit out of the constitution. It would be galling for a future Republican to say 'well, you can't impeach me, because I'm not as bad as Bush and Cheney'.

Posted by pseudonymous in nc | July 21, 2007 1:41 AM

Congress could impeach & remove the US attorney for failure to carry out the law.

As biggerbox said, the oath is to the Constitution, not the President.

Posted by MobiusKlein | July 21, 2007 2:35 AM

Bush's argument is "If you think I'm wrong, impeach me. Otherwise, fuck off."

Posted by Jeffrey Davis | July 21, 2007 10:00 AM

Jeffrey Davis: that's it precisely.

Unitary Executive = Absolute Monarchy

Unitary means one and indivisible. Even the pre-1688 British monarchy involved subtle distinctions such as the "king-in-Parliament" which attempted to capture the role of a broader elite public will in balancing the king.

It is also striking that it is the "Federalist" Society which has been promoting this stuff. They are harkening back to the Federalist party of John Adams. The one which was constantly suspected of being monarchist at root and was completely demolished after enacting such abominations as the "Alien and Sedition" Act (shades of "homeland" security).

The only thing missing from the Bush-era "Unitary Executive" theory is the "right of inheritance", and that is only a formal oversight given Bush's relationship to the 41st President.

The argument among opponents of the present "administration" is between those who feel Bush is simply aberrational and his successor will revert to normalcy, and those who fear that Bush will have redefined the Presidency to a dictatorship.

Congress has to censure or impeach Bush -- something has to go onto the record to counter future claims that "Presidents have always ruled by decree" based on the example of Bush's outrages.

Posted by STS | July 22, 2007 1:35 PM