Unitary executive theory
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 Unitary executive theory is a U.S. legal doctrine derived from the English concept of prerogative power, which gives the President the right to operate in a supra-legal manner. Most, but not all, U.S. examples are related to warfare, and advocates of the theory claim it was the intent of the Framers. There is, indeed, substantial evidence that the Framers had a view that the ultimate executive authority would reside in an individual rather than a council, but much less evidence that they believed the executive had significant unilateral authority, not subject to review by other branches of government.
There are several ways to exert unitary executive power. The most public are signing statements, which are overt declaration of how and if the President intends to comply with legislation. Also rather public are military actions taken beyond immediate self-defense, such as sending additional forces to the Korean Peninsula during the Korean War, or launching retaliatory strikes after the Gulf of Tonkin Incident. More controversial are covert actions taken without the knowledge of Congress, or even in opposition to Congressional directives (e.g., the Boland Amendment forbidding U.S. aid to the Nicaraguan Contras. While checks and balances are indeed a basic Constitutional concept, some powers indeed are unique to a given branch. The power to pardon, for example, is unique to the President, as the the Supreme Court of the United States noted in INS v. Chadha.[1] The first clear major war started on sole Presidential authority was the Korean War; the need to respond quickly to nuclear threat caused further delegation during the Cold War, but Congress began to challenge the authority after the Vietnam War with the War Powers Resolution; Lyndon B. Johnson had made major combat commitments with the authority of the Gulf of Tonkin Resolution, later seen as given in haste. Some go beyond the unitary theory to speak of unilateral Presidential authority. [2] One American political figure who has supported strong authority for decades is Dick Cheney. [3] Constitutional background[edit]Alexander Hamilton wrote of "presidential unity" in Federalist 70, the document perhaps most frequently cited by supporters of the unitary theory. Charlie Savage interprets this as simply meaning the President need not first reach a consensus within the Executive, as was, for example, the case in the Second World War Japanese Cabinet. Federalist 69, however, said that while the President, as did the British King, would oversee the military, he would be "first general", with much less power than a king, for the power to create armies and declare war is given to the Congress. [4] Walter Berns observed that in the "Records of the Federal Convention of 1787," on June 1,two weeks after the start of the Constitutional Convention, James Wilson "moved that the Executive consist in a single person." Charles Pinckney seconded the motion. Then, "a considerable pause" ensued, and the chairman asked if he should put the question. "Doc Franklin observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put and Mr. Rutledge animadverted on the shyness of gentlemen. . . ." The pause, according to Berns, was due to the proposed executive being very different from the state executives, and indeed reminiscent of King George III.[5] James Wilson, one of the Framers, and later Associate Justice of the Supreme Court, told the Pennsylvania ratifiers
Implementation[edit]Executive Orders[edit]Signing statements[edit]Signing statement do not have a specific form, but are statements, issued by a President on signing a bill. In some, but not all, cases, they are a means of claiming unitary authority. They have not been a strict liberal vs. conservative issue. During the Clinton Administration, the Office of Legal Counsel of the U.S. Department of Justice sent an opinion to the White House Counsel, indicating that they had been used in many administrations, and it was the duty of the President not to enforce an unconstitutional law. [7] The earliest examples come from James Madison. Usages[edit]
Another variant, which seems to have been introduced in the Reagan Administration, is to "to create legislative (or "executive") history that is expected to be given weight by the courts in ascertain the meaning of statutory language.[11] Controversy[edit]In the more controversial usages, such "involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional. Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3)."[12] Ronald Reagan was the first President to use the phrase "unitary presidential authority" in a signing statement; George W. Bush has invoked the formulation that " routinely asserted that he will not act contrary to the constitutional provisions that direct the president to “supervise the unitary executive branch.” This formulation can be found first in a signing statement of Ronald Reagan, and it was repeated several times by George H. W. Bush. Basically, Bush asserts that Congress cannot pass a law that undercuts the constitutionally granted authorities of the President. "[12] In 1986, then-Attorney General Meese entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Mr. Meese explained the purpose of the project as follows:
Use of military force[edit]Congressional notifications of secret activity[edit]In a book review, L. Britt Snider, who has been CIA Inspector General and General Counsel of the Senate Select Committee on Intelligence, observes that while the time between the creation of the CIA in 1947 and the Bay of Pigs in 1961 has been called "the “dark ages” of congressional oversight, when control rested with a few powerful committee chairmen, who did little monitoring of the CIA themselves, but held other committees at bay and fended off all efforts at reform." was more complex than generally understood. Still, there were situations where even Director of Central Intelligence Allen Dulles was surprised to discover that, for example, Speaker of the House Sam Rayburn had not been briefed on U-2 overflights of the Soviet Union.[13]
After this time, Congressional oversight mechanisms were more formalized, but not always used. There are also situations where Congress and the Executive disagree on whether a highly classified briefing was conducted. Removal of officials[edit]Among the first challenges to presidential authority, which led to the impeachment of Andrew Johnson, was the Tenure of Office Act of 1866, which held that a President could not remove an official who had been confirmed by the Senate. In general, that authority is accepted to be a Presidential right, except for special cases. Such special cases include officials intended to be largely independent, such as Inspectors General or Special Prosecutor. During Watergate, Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than accept Richard Nixon's demand that they fire Special Prosecutor Archibald Cox. In retrospect, the specific Special Prosecutor Act that appointed Cox has been considered flawed, but the issue that the Attorney General has responsibilities both to the President and as the nation's chief law enforcement officer continues. Treaties[edit]Exercise by specific presidents[edit]Abraham Lincoln[edit]During the American Civil War, President Abraham Lincoln declared martial law in the Confederate States of America, but also took extralegal measures within the Union. Ex parte Milligan is one key precedent where the Supreme Court limited presidential and derived military authority. Theodore Roosevelt[edit]Roosevelt used both unilateral military orders and signing statements. Not to meet a specific security threat, but to inform the world of the growing power of the United States, he sent the "Great White Fleet" of white-painted modern warships on a world cruise. [14] When Sen. Eugene Hale, chairman of the Naval Appropriations Committee, threatened to withhold money for the cruise, Roosevelt he already had the money and dared Congress to "try and get it back." In actuality, part of the funding came from construction money for additional warships, and he had always planned to use the cruise to get a supplemental appropriation. When Roosevelt established several volunteer unpaid commissions to investigate certain factual situations and report back their findings to him. This practice "came to be denounced in Congress as 'unconstitutional,' and an amendment to the Sundry Civil Act of 1909 undertook to forbid the practice. Mr. Roosevelt signed the measure but proclaimed his intention of ignoring the restriction. 'Congress,' he argued, 'cannot prevent the President from seeking advice,' . . .". [15] Franklin D. Roosevelt[edit]Franklin D. Roosevelt, in 1941, confided an unpublished Presidential legal opinion objecting to the "two-House veto" provision in the Lend Lease bill to then-Attorney General Robert Jackson. Roosevelt found the provision "clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity, not issuing a signing statement but desirous of doing so. [16]. He did, however, issue a statement when signing the Urgent Deficiency Appropriations Act of 1943, which included a section prohibiting the payment of a government salary or other compensation to certain named government employees deemed to be subversive. While signing the bill because it appropriated funds urgently needed to carry on the war, Roosevelt "'plac[ed] on record my view that this provision is not only unwise and discriminatory, but unconstitutional.'" [17] Harry S Truman[edit]While the Korean War was soon under United Nations authority, the reality was that Harry S Truman ordered U.S. military forces into combat, to the defense of an ally with limited sovereignty. He saw the act as part of the containment policy. He also issued a statement when he signed the General Appropriation Act of 1951, regarding loans to Spain, saying that "I do not regard this provision as a directive, which would be unconstitutional, but instead as an authorization, in addition to the authority already in existence under which loans to Spain may be made." [18] Dwight D. Eisenhower[edit]Dwight D. Eisenhower, while presenting a public image of a relaxed, golf-playing grandfather, actually ran a very strong executive, using multiple aspects of unitary authority. Covert action and clandestine intelligence[edit]Eisenhower discussed the 1960 U-2 Incident with senior Congressional leaders, but made it clear that the operational decision had been made on his personal authority, and he did not want deep Congressional investigation into intelligence activities. When Sen. Mike Mansfield asked "What would the President think if there were to be established in the Congress a joint Congressional Committee which would oversee the activities of the CIA? The President responded that his own feeling was that the operation of the CIA was so delicate and so secret in many cases that it must be kept under cover, and that the Executive must be held responsible for it. He said that he would agree to some bipartisan group going down occasionally and receiving reports from the CIA on their activities, but that he would hate to see it formalized--indeed would be against the proposal made by Senator Mansfield.[19] Signing statements[edit]President Eisenhower sought to put a "saving" construction on a 1959 bill amending the Mutual Security Act. He stated that "I have signed this bill on the express premise that the three amendments relating to disclosure are not intended to alter and cannot alter the recognized Constitutional duty and power of the executive with respect to the disclosure of information, documents, and other materials. Indeed, any other construction of these amendments would raise grave Constitutional questions under the historic Separation of Powers Doctrine." [20]. Use of military force[edit]When the state government of Arkansas (U.S. state) resisted a Federal court order to desegregate its schools, Eisenhower federalized the Arkansas National Guard and sent regular Army troops to support U.S. Marshals in enforcing the court order. Under the Posse Comitatus Act, Federal troops may not be used directly to enforce civil law, but the Marshals were the actual enforcers. Obviously, a large military force has an effect on the situation, regardless of its actual authority. His basis for the action was a U.S. code provision invoking Presidential authority,
While the Court did not review his exact action, Cooper v. Aaron, [22] rejected a contention advanced by critics of the legality of his conduct, namely, that the President’s constitutional duty to see to the faithful execution of the laws as implemented by the provisions quoted above, does not afford a sanction for the use of troops to enforce decrees of federal courts, inasmuch as the latter are not statutory enactments which alone are comprehended within the phrase, “laws of the United States.” According to the Court, a judicial decision interpreting a constitutional provision, specifically the Court’s interpretation of the Fourteenth Amendment enunciated “. . . in the Brown v. Board of Education[23] is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect . . . .” In other words, specific enforcement of a judicial decision does not violate Posse Comitatus. [24]
John F. Kennedy[edit]Covert action[edit]
Lyndon B. Johnson[edit]
Richard M. Nixon[edit]President Nixon signed a 1971 military authorization bill, but objected to a provision in it (the Mansfield Amendment, which set a final date for the withdrawal of U.S. Forces from Indochina) as being "without binding force or effect." [25] Jimmy Carter[edit]President Jimmy Carter issued a signing statements similar to ones issued by Ulysses Grant in 1876, in which Congress ordered the closing of overseas consulates. Carter argued that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President," and accordingly stated his determination to construe the provision as merely precatory. [26] Ronald Reagan[edit]
The Minority Report on Report of the Congressional Committees Investigating the Iran-Contra Affair was signed by Dick Cheney as ranking minority member; the primary drafter was Michael Malbin and David Addington contributed to it. [27]
George H. W. Bush[edit]Testifying to the Senate as U.S. Secretary of Defense, Cheney responded to a question from Sen. Ted Kennedy, "Now, barring an act of provocation, do you agree that the President must obtain the approval of Congress in advance before the United States attacks Iraq?"
Bill Clinton[edit]During the Clinton Administration, Congress directed that U.S. military personnel not be placed under United Nations operational control while conducting peace operations. "Because U.N. peacekeeping operations involve multilateral arrangements that require delicate and complex accommodations of a variety of concerns, including those of the nations that provide troops or resources," a mission's success may depend on the degree to which it is perceived as a U.N. rather than U.S. activity.[30] This was criticized with the commentary by John Yoo, "Responding to congressional efforts to stop the new policy, the Clinton administration has claimed a broad constitutional power in the president to delegate military command authority to any person. According to the administration, the president’s commander in chief power allows him to select whomever he believes necessary for military success…. That position has serious constitutional and policy defects. First, the administration’s legal justification for its recent multilateral command policy fails to account for the Constitution’s limitation on the delegation of federal power outside of the national government…."[31] George W. Bush[edit]Many, but certainly not all, of this Administrations assertions of unitary authority have been in response to the 9/11 attack. Executive Orders[edit]One early Executive Order dealt with interpretation of a treaty, the Third Geneva Convention. He wrote, 7 February 2002,
Signing statements[edit]While Judge Richard Posner argues that the U.S. is in a state of war with al-Qaeda, he rejects the more extreme position of John Yoo, Deputy Assistant Attorney General and later White House counsel for George W. Bush.[33] Yoo interpreted the Authorization for the Use of Military Force to give the President "plenary constitution power", under Article II, to "to take such military actions as he deems necessary ". [34] According to Posner, Yoo's position gives the President the sole right to determine the status of prisoners; since the President is Commander-in-Chief in peacetime, the right to military arrest would be applicable at all times. Barack Obama[edit]President Obama issued his first signing statement on 11 March 2009, saying "it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections."[35] He indicated that he would not compromise Presidential authority in the following areas raised by the bill:
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