Please clarify my understanding of the Unitary Executive Theory

[NewJeffCT]

Please clarify my understanding of the “Unitary Executive” theory that neocons seem so fond of these days. I know it came up in the Alito hearings, but I just want to make sure I understand the idea.

If my understanding is correct, the President represents the whole executive branch and is on the same level as Congress & the Supreme Court. So, 1 president (representing his whole cabinet) equals 535 members of Congress, which equals 9 supreme court justices. I think that is a basic summary of the Unitary Executive.

This means that the president carries the entire weight of the various cabinet positions beneath him on his shoulders – Defense, State, Justice, etc. So, if somebody in one cabinet position thought another cabinet department was breaking the law and wanted to sue, it would basically mean the president is suing himself, and can’t be done, as the president IS both cabinet departments.

Now, if my understanding is correct, the State Department knew that the 16 words in Bush’s State of the Union address in 2003 related to uranium from Niger were false a few weeks before the state of the union speech. (thanks to Jason Leopold at Truthout)

Therefore, under the Unitary Executive theory, if the State Dept knew it was false, then Bush knew it was false… contrary to Republican claims that it was an innocent mistake that got into the speech by accident.

Am I way off base here?

[SlipperySlope]

1. I'm not an expert on all of this...

Here's my two cents...

From a Constitutional point of view, our FEDERAL government has three branches; legislative, executive, and judicial. One could argue that each of these three branches is "equal". They do have certain checks and balances over each other, but they aren't supposed to directly interfere with each other. I'll add briefly that one could consider the States to be a "fourth branch" of government since they have certain sovereign powers as well, but that wasn't the topic of your question.

The constitution says clearly:


* All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

* The executive Power shall be vested in a President of the United States of America.

* The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.


So yes, as far as the Constitution goes, 1 President = 525 Congressmen = 9 Justices. That part is pretty clear.

Now, as far as the theory of a "Unitary Executive" goes, it basically says that the entire executive branch serves at the will of the President, and any meddling in the Executive branch from either the Legislature or the Judicial branch is unconstitutional. It also says that, because they entire executive branch serves at the will of the President, no part of the executive branch can sue any other part of the executive branch, as that would effectively mean the president was sueing himself.

Here's the slippery part. Proponents of this theory also claim that one of the fundamental duties of the President is to interpret the laws he is enforcing. At the minimum, they point out, sometimes laws passed by Congress are unclear and the President has no choice but to interpret them to enforce them. But, if you extend this logic, you reach a pretty nasty place. That place is the idea that the President can choose to interpret a law or disregard a law in complete contempt of the legislature and judiciary (as an extension of his power to interpret). In addition, any attempt by the Congress or Supreme Court to compel the executive branch to act would be seen as interference with the President's absolute power over the executive branch. Taken to the extreme this would mean that laws only mean what the president says they mean, and no branch of the government can override him.

[Imperialism Inc.]

2. Very well explained.

Short, clear and to the point. I'm going to file that away for future reference. Thanks.

[Igel]

3. I think the last part goes further than most UE folks would

argue.

They'd say, IIRC, that the Executive must interpret the laws in order to execute them. About this there's no serious dispute: the interpretation can be based on a naive reading of the text of the law, but that's also an interpretation.

At that point, the Congress has no say. It's done it's job. It does not direct the IRS to do things, or mandate the CIA or DOJ do things. Not it's job. Every part of the executive branch reports to the head of the executive branch, not to Congress or the courts.

But the Judicial branch can, and does, have a say over the executive branch. So while each branch is equal, if Congress passes a law and the Judicial branch says it means X, X is what it means. If this weren't the case, there'd be no need for a judiciary except to regulate affairs between individuals--and nothing stopping the executive from usurping that power. This would make Congress meaningless, because who would care what the laws were.

The problem arises before the Judicial branch makes its pronouncement. For example, the wiretapping case. Executive says it's constitutional; Congress says it's not, FISA clearly limits it; but nobody in the administration seriously cares unless Congress decides it's grounds for impeachment--a political, not a legal, act. It'll be the courts that decide constitutionality and whether FISA covers it. But for that, somebody has to have standing to bring the case, IIRC.