In a Federalist Society publication in 2001, U.S. Supreme Court nominee Samuel Alito affirmed his belief in what is called the “unitary executive”. Some have described this as a “King with Advisers” form of government. Republicans, knowing that this talk sounds like a power grab, have claimed that it simply means that we “only have one president.” This desperate defense is completely absurd. It also shows the contempt that the Neo-Cons have for the people of this country. Do they really think we are that stupid?
Rather than argue over the definition right now, why don’t we look at how the Bush Administration has used this theory. Remember when John McCain had to “negotiate” with Bush for him to sign the anti-torture legislation? You saw the meeting of the two on the news, but what you might not have seen was Bush writing his “signing statement” that accompanied that bill. A signing statement is basically the President giving his interpretation of the law he just signed. Something does not seem right here, because I thought that the Judicial Branch was the one that interpreted law. In any case, this is what the Bush Administration put in that signing statement:
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.
In other words, “Even though I’m signing this bill, I’ll torture whoever I want to! Screw the courts!” Bush is not only trying to take away from the Judicial Branch by claiming the power to interpret law, but he is also in effect rewriting the legislation, thus replacing the Legislative Branch also.
The signing statement has been a presidential tool for some time, but Bush has taken it to frightening levels. This from Jennifer Van Bergen in a piece from the Find Law website:
President Bush has used presidential signing statements more than any previous president. From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.Combine all of these things together and you’ve got an attack on a fundamental belief of the founders- the seperation of powers. If you will not listen to my reasoning, will you listen to some of them?
In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times.
James Madison wrote in The Federalist Papers, No. 47, that:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Another early American, George Nicholas, articulated the concept of "power divided" in one of his letters:
The most effectual guard which has yet been discovered against the abuse of power, is the division of it. It is our happiness to have a constitution which contains within it a sufficient limitation to the power granted by it, and also a proper division of that power. But no constitution affords any real security to liberty unless it is considered as sacred and preserved inviolate; because that security can only arise from an actual and not from a nominal limitation and division of power.
Responding to this historic quote Van Bergen comments:
Yet it seems a nominal limitation and division of power - with real power concentrated solely in the "unitary executive" - is exactly what President Bush seeks. His signing statements make the point quite clearly, and his overt refusal to follow the laws illustrates that point: In Bush's view, there is no actual limitation or division of power; it all resides in the executive.This is truly a frightening time for our democracy and I only wish that thoughtful conservatives would stand up and be counted. If you are out there, I hope you answer that call as I hope I would if my guy claimed these King-like powers.