Constitutional Myth #3: The 'Unitary Executive' is a Dictator in War and Peace

By Garrett Epps

The idea that the President's powers aren't limited by Congress is a radical--and dangerous--trendEpps_Myth3_6-09_banner.jpgFew parts of our Constitution generate more mythology than Article Two, which creates the office of the President.

The Constitution grants the president the following exclusive powers: (1) he is commander in chief of the armed forces; (2) he can require "heads of departments" to give him their opinions in writing; (3) he receives ambassadors, and; (4) he grants pardons for federal offenses. In addition, he shares with the Senate the treaty power and the appointment authority ("advise and consent"), and can make "recess appointments" if Congress is not in session. He can veto a bill, subject to override by 2/3 of both Houses. He can convene Congress on "extraordinary occasions," but ordinarily may not force it to adjourn. He is required to send a state of the union message "from time to time," and he shall "take care that the laws be faithfully executed."

It's not an overwhelming list. But on this vague framework, executive theorists have constructed a view of the office that is sometimes little short of dictatorship. That constitutional myth affects presidents of both parties and their supporters.

Consider that, in the days after 9/11, Congress authorized President Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." That may be the broadest such resolution ever passed.

The current theory is far more radical, and it is dangerous, no matter which party holds the White House. In any crisis, it allows power to flow to the President; as crisis recedes, future Presidents tend not to give it back.

Yet immediately after passage, Bush's in-house lawyer, John Yoo, wrote the president an official memo stating that Bush didn't need the authorization. "The historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President." Yoo argued, "Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency."

Yoo was deploying a theory of executive power best summed up by his phrase: "no limits on the Executive's judgment." George W. Bush was later to rely on that theory to justify warrantless eavesdropping on American citizens' phone calls and emails, despite a statute banning the practice, and to override the Detainee Treatment Act of 2005, with its absolute prohibition on "cruel, inhuman, or degrading treatment or punishment" " of prisoners.

Executive hubris is not limited by party. Bill Clinton (Kosovo 1998) and Barack Obama (Libya 2011) have also asserted presidential power to use armed force without congressional consent. Boston College professor Kent Greenfield recently laid out the astonishing facts of the Obama administration's decision to ignore the War Powers Resolution.

The authoritarian theory of the presidency draws its justification from the opening words of Article II: "The executive power shall be vested in a President of the United States of America." Executive hawks argue that the phrase "the executive power" and "a President of the United States of America" lodge extensive, exclusive power in the president alone.

During America's first major foreign policy crisis, Treasury Secretary Alexander Hamilton argued that the phrase "the executive power" meant that all the power of any chief of state was lodged in the president, "subject only to the exceptions the exceptions and qualifications which are expressed" in the Constitution.

In other words, unless the Constitution says the president can't do something, the president can do it. That argument underwent a fundamental shift after 1980. Reagan and his attorney general, Ed Meese, regarded the Democratic-majority Congress as the enemy. They needed a theory that would let them act at home and abroad without congressional authorization, withhold information from Congress at their pleasure, and resist any attempt by Congress to find out what was going on or limit their freedom of maneuver. To Hamilton's already radical view of the executive power, they added the "unitary executive" idea.

That idea says that because "the" executive power is vested in "a president," any attempt to limit the president's control over the executive branch is unconstitutional. It supposedly follows from the "the" and the "a" that members of the executive branch are solely accountable to the president alone, and the president, in turn, may order anyone who works in the executive branch to exercise his or her discretion in fulfilling any official function however the president personally thinks best.

Peter M. Shane of Ohio State University's Moritz College of Law, a former Office of Legal Counsel official, and now a paramount scholar of presidential authority, points to a 1988 dispute with Congress over AIDS as sewing the seeds of the hard-line "unitary executive" theory. Congress passed a statute requiring the Centers for Disease Control to publish a pamphlet setting out the facts about the disease and ways of preventing it. Ronald Reagan really didn't think AIDS was such a big deal and preferred it not be mentioned at all; the Reagan White House refused to clear the pamphlet. In frustration, Congress by statute instructed the head of CDC--chosen, as White House aides are not, for expertise in public health-- to publish the pamphlet without clearance.

The Reagan Justice Department issued an opinion that the law was flatly unconstitutional. "Any attempt by Congress to constrain the president's authority to supervise and direct his subordinates in this respect," OLC's opinion said, "violates the Constitution."

This is hardly an obvious reading. The text of Article II is silent. (Indeed, the Constitution doesn't even explicitly give the President the power to fire federal officials.) And the Constitution does say that Congress has the authority to enact laws "necessary and proper" for executing not just its own authorities, but all powers that the Constitution vests in "any department or officer" of "the government of the United States." This certainly suggests Congress has a share of the power to direct those "departments and officers."

As such, the present administration's conduct puzzles Shane. "The Obama Administration has commendably stayed away from George W. Bush's aggressive claims of executive power, but, perhaps because Congress is itself so dysfunctional these days, the Administration seems to be underplaying the opportunity to reset the terms of presidential authority," Shane said. It's doubly puzzling, he adds, because, as a senator, Joe Biden unsuccessfully introduced "the most thoughtful war powers legislation since 1973. I don't know why the Administration does not resurrect it."

(By the way, in earlier columns I imagined an Obama decision to ignore the debt limit. I wasn't urging Obama to do that; my point was that the scenario fits into "unitary executive" theory. )

There's another way to read Article II. The Framers didn't talk much about a "unitary executive"; to the extend they did, they may have meant simply that the Constitution does not feature an Executive Council of the kind set up in many revolutionary-era state constitutions. And "the executive power" could mean simply those actions that aren't legislative or judicial, to be carried out in harmony with the authority of both other branches over national policy and constitutional interpretation.

The current theory is far more radical, and it is dangerous, no matter which party holds the White House. In any crisis, it allows power to flow to the president; as crisis recedes, future presidents tend not to give it back.

If you doubt that, look no further than President Obama, who as Senator and candidate was harshly critical of George W. Bush's high-handed ways. As military action in Libya passes the 75-day mark, he now is pushing the executive envelope even further.

Image Credit: Wikimedia Commons



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http://www.theatlantic.com/national/archive/2011/06/constitutional-myth-3-the-unitary-executive-is-a-dictator-in-war-and-peace/239627/