Not crisis yet, but executive power bears watching

Freedom Newspapers

A term few Americans are familiar with has become almost a commonplace during Judge Samuel Alito’s confirmation hearings. How has the judge used the term “unitary executive,” and why has President Bush used the term more than 100 times in “signing statements” issued when he signs bills into law?

Most recently, in signing the Defense Appropriations bill that contained the McCain anti-torture amendment, the president proclaimed, “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power …”

Does that mean, since administration lawyers have argued in the past that the president’s “plenary power” in an emergency includes the right to ignore treaties and acts of Congress, that the president will do whatever he pleases, and the judiciary branch can go whistle, as some have suggested? Not quite, but it’s worth worrying about.

As constitutional scholar Roger Pilon of the libertarian Cato Institute explained, “unitary executive power” has two meanings, one rather commonplace and the other more controversial and unsettled. The first is that since the Constitution gives the president the power to see that the laws are faithfully executed, he has the power to supervise the entire executive branch. That includes hiring and firing and setting policy, in a centralized, “unitary” manner. This power is limited by the Civil Service Act, and there’s some question as to whether it applies to “independent” regulatory agencies.

The second meaning, regarding the scope of unitary presidential authority, is more controversial. Does a congressional authorization to use force expand power to, for example, order surveillance of Americans? Even though Congress in 1978 set up a Foreign Intelligence Surveillance Court to supervise such surveillance? If the president’s “unitary executive” power allows him to enforce policy on the entire executive branch, perhaps it does expand his power that far.

This is made more complicated by the modern practice of presidents attaching signing statements to legislation, a practice Judge Alito, when serving in the Office of Legal Counsel during the Reagan administration, pioneered. President Bush has issued more signing statements (about 500) than any previous president, and about 100 have included the term “unitary executive” in a way that tends to strengthen executive power. Signing statements in some cases are simply explanations of how the executive branch plans to “execute” this law. But they are also intended to have weight, like legislative history, when the courts interpret laws, generally in favor of executive power. So far the courts have paid attention to them only sporadically.

It’s not quite time to worry about President Bush destroying the separation of powers and ruling as a monarch or dictator. But these and other signs show a persistent impulse to beef up executive-branch power at the expense of the legislative and judicial branches. The danger to our constitutional system and to American traditions of personal freedom is not at a crisis point yet, but the “unitarians” bear watching.