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By JOHN W DEAN ---- Friday, Mar 23, 2007 At the outset of this column -- which discusses Bush's new White House Counsel, Fred Fielding -- I must acknowledge that I am the person who first hired, and brought Fielding into the government. He served as my deputy in the Nixon White House, and was untouched by Watergate, because I shielded all my staff from that unpleasant business. Fred is an able lawyer, and now finds himself in the hot seat, with President Bush seemingly looking for a fight with Congress. To the contrary, you show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising a president. Of course, I do not know what is transpiring behind closed doors at the White House right now. But I do believe there is more occurring than meets the eye with respect to the potential confrontation developing between the Democratic Congress and the Bush White House. On the surface, the clash appears rather simple: Congress wants information, and Bush does not want to provide it if it means breaching the sanctity of the realm in which he receives advice from his aides privately. But this surface conflict, as I will explain, does not get to the bottom of this developing dust-up. In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency.
this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great. And this conflict, in the end, is all about presidential power. Moreover, underlying the Administration's defense of unchecked power, is a term that has not been heard since Justice Alito's confirmation hearings: "the unitary executive theory." Today, however, the opposite is the case, and the unitary executive theory is central to their argument. But understanding why two co-equal branches of our government each have such strong feelings about their need to prevail in this conflict, may help to get to the heart of the matter.
a piece last year for The New Republic's July issue, legal journalist Jeffery Rosen summed up George W Bush's outlook on the presidency: "One of the defining principles of the Bush administration has been a belief in unfettered executive power. Indeed, President Bush has taken the principle to such unprecedented extremes that an ironic reversal has taken place: A conservative ideology that had always been devoted to limiting government power has been transformed into the largest expansion of executive power since FDR." Rosen reported that Bush's perspective is not "mere political opportunism--a cynical rationale devised after September 11 to allow the president to do whatever he likes in the war on terrorism." Rather, Rosen explained, Bush's actions stem from his embrace of the "unitary executive theory."
Column continues below -v Bush's governing style is not surprising to those who took a close look at how he governed before he arrived in Washington. Indeed, the perceptive conservative commentator George Will saw it coming. Will visited Governor Bush in Texas in 1999, and talked as well with the team Bush had assembled to work on his presidential campaign. "They are recasting conservatism by expunging the traditional conservative ambivalence about presidential power," Will reported at the time. "Hence the presence on the cluttered desk of chief speechwriter Mike Gerson of Terry Eastland's book, Energy in the Executive: The Case for the Strong Presidency. His article and his take on the situation are thus excellent evidence that even in a hypothetical world without 9/11, we still would have seen additional executive power grabs from a second-term President Bush. I raise Terry Eastland's book, in particular, because I have always believed it has been something of a bible for Bush II and his staff. The book is also directly related to the "unitary executive theory." Eastland draws his view of the presidency from the same source attorneys in the Reagan Administration Justice Department's Office of Legal Counsel did, when they came up with the phrase "unitary executive theory" to describe their effort to provide legal justification for the President's taking increasingly aggressive control of the executive branch. At that time, the clash was between the Executive and the independent regulatory agencies, but the principle was the same. The source upon which both Eastland and those who coined the "unitary executive" theory relied, of course, was Hamilton's Federalists No.
Washington Post reporter Dana Milbank correctly described the "unitary executive theory" as an "obscure philosophy that favors an extraordinarily powerful president." Milbank found an invocation of this philosophy in the notorious "torture memos."
clause as investing the president with the fullest range of power," the memo claimed, including power over "the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress." Such power was given, the memo theorized, because "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress."
an analysis by Loyola Law School Professors Karl Manheim and Allan Ides. Professors Manheim and Ides trace the origins, evolution, and current uses of the unitary executive theory. While it is beyond the scope of their analysis, they also, along the way, provide information useful to deconstruct and critically analyze this concocted effort at legal (and historical) legerdemain. This is not the place for me to unload on this hogwash theory, but I must pause to comment, at least, on its purported links to Alexander Hamilton's purported vision of "a unitary executive." he is a specialist in American Public Law at the non-partisan Congressional Reference Service of the Library of Congress, and he is described by many of those who know him as the smartest guy in the place. Rosenberg was one of the first to correct this loopy scholarship when it began appearing in the early 1980s.
conceive of the presidency as an institutionalized representation of popular will distinct from, let alone capable of opposition to, the will expressed by the legislature. Even Hamilton's most strenuous defenses of executive authority emphasized the president's role as the managerial agent for the legislature, not his popular independence in reflection of some other popular will." Manheim and Ides explain that the essence of the unitary executive "theory" is "more about power than it is about law." And power, here, means presidential power: The "unitary executive" theory is a theoretical, legal, historical, and Constitutional hook conservatives have invented to expand presidential power. These "unitarians" postulate, as Manheim and Ides note, "that the authority to enforce federal law and to implement federal policy rest exclusively in the Executive Branch and, most importantly, the ultimate prerogative over this executive function is vested solely and completely in the President, who sits atop the hierarchy of executive power and responsibility." This exclusivity, in the unitarians' view, precludes any but the most minimal role for Congress: Its role, they believe, is simply to decide whether to appropriate money; The Relationship of Unitary Executive Theory and Executive Privilege Eastland's tutorial, set forth in his book, instructed President Bush and his staff to make a big deal out of protecting presidential prerogatives. So, too, does the unitary executive theory, which was developed at the same time that Reagan's Justice Department was doing what Presidents Ford and Carter had been too wary to do: revive Executive Privilege. Neither Ford nor Carter issued guidelines for the executive branch regarding the use of this privilege, for Nixon had given it such a bad name they dared not use it.
In the language quoted by French, t...
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