The Bush administration has been using an extreme version of an obscure doctrine called the Unitary Executive Theory to justify executive actions that far exceed past presidents' power, RAW STORY has learned.
The doctrine assumes, in its extreme form, nearly absolute deference to the Executive branch from Congress and the Judiciary.
According to Dr. Christopher Kelley, a professor in the Department of Political Sciences at Miami University, as of April 2005, President Bush had used the doctrine 95 times when signing legislation into law, issuing an executive order, or responding to a congressional resolution.
The President announced in these signings that he would construe provisions in a manner consistent with his “constitutional authority to supervise the unitary executive branch.” While the President clearly has the authority to supervise the executive branch, it is unclear how far he might construe this authority under the unitary executive theory.
In fact, according to professors Steven J. Calabresi and Christopher S. Yoo, “a veritable all-star list of constitutional scholars” has rejected judicial supremacy, considering it inconsistent with the idea of checks and balances among the three branches of the federal government.
The President announced in these signings that he would construe provisions in a manner consistent with his "constitutional authority to supervise the unitary executive branch." While the President clearly has the authority to supervise the executive branch, it is unclear how far he might construe this authority under the unitary executive theory.
The Administration’s actions under this doctrine have become so prevalent that even conservatives on the Supreme Court who are sympathetic to the unitary executive theory have felt compelled to reject them. Last year, for example, the Court ruled that the President does not have absolute authority to detain enemy combatants without due process.
Unitarian vs. Non-Unitarian theoreticians
The unitary executive doctrine, in its mildest form, claims only that the President has the power to appoint, control, and remove executive officers, as well as the duty to interpret the law as it applies to his office.
The doctrine is being used by the Bush Administration, however, to claim the authority to decide what is and what is not the law in areas that some legal experts view as suspect. Michael A. Froomkin, professor at University of Miami Law School, told RAW STORY that some of Bush’s applications of the doctrine are “highly dubious.”
Under the Constitution, the president’s role is to “take care that the laws be faithfully executed.” Congress has the power to make the laws and the judiciary interprets the law.
For over 200 years, the United States Supreme Court has been viewed as the final arbiter of what is and what is not the law. “It is emphatically the province and duty of the judicial department to say what the law is,” declared Chief Justice John Marshall in 1803. “This is the very essence of judicial duty.”
But unitary executive theoreticians claim that judicial supremacy over interpretation of the laws is not and never has been exclusive. Professors Calabresi and Yoo have noted that “the suggestion that the Supreme Court may not have the last word on matters of constitutional interpretation seems at first to be quite jarring to modern lawyers” but Marshall’s famous opinion “never claimed that interpretation of the law was the exclusive province of the courts.”
Froomkin, who has debated this issue on the law review circuit, is a non-Unitarian who acknowledged to RAW STORY that the president has not only the power -- but the duty -- to interpret the Constitution in certain instances, as when he vetoes a bill.
“The President has a duty not to undermine his own office,” he says.
According to Froomkin, a problem arises when the president views himself as completely above the law or is so secretive that no checks and balances can work. The greatest danger is when Congress doesn’t adequately assert itself, he asserts.
The Miami professor noted that Congress did not react to the legality of the Guantanamo detentions. Nor did they respond when the CIA used an unmanned plane fitted with a five-foot-long Hellfire missile to kill a senior al Qaeda leader as he was riding in a car in the Yemeni desert, also killing a naturalized U.S. citizen.
Congress has never questioned the order to assassinate these individuals, even though the CIA has been banned from conducting or participating in assassinations since 1976.
The major difference between Unitarians and non-Unitarians, according to Froomkin, is that Unitarians believe the President can do what he likes and non-Unitarians believe there are boundaries and limits to executive power.
The Geneva Convention
Froomkin also sees the selective nonapplication of the Geneva Conventions to certain designated enemy combatants and the military tribunals as legally dubious.
The Administration’s claim that it has the authority to decide what is or is not the law is most manifest in its decision not to apply the Geneva Conventions to certain persons. A 2003 memo on torture written by Department of Defense lawyers stated that “criminal statutes are not read as infringing on the president’s ultimate authority” as commander-in-chief, and prohibitions on torture “must be construed as inapplicable to interrogations.”
“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,” said the memo.
White House Counsel Alberto Gonzales wrote in 2002 that the Geneva Conventions were “obsolete” and “quaint” and argued that Bush had the constitutional authority to determine that Geneva did not apply to al Qaeda or the Taliban.
Several mainstream legal scholars have declared that the President’s claim of unlimited executive power turns the Constitution on its head. University of Texas law professor Douglas Laycock told the L.A. Times that “It is just wrong to say the president can do whatever he wants, even if it is against the law.”
Charles Gittings, founder of the Project to Enforce the Geneva Conventions, asserts that the President’s decision not to apply Geneva, or to apply it selectively, is a grave breach of the Convention and thus a violation of the War Crimes Act of 1996.
“The President has no Constitutional authority to commit crimes,” he said.