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President Clinton's Legacy and the Unitary Executive Theory

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Updated June 08, 2008
U.S. Liberals Guide Deborah White has posted a stirring editorial on recent events surrounding the NSA spygate program and the Bush administration's response to same. She then goes on to say:
Liberal leaders strongly support the words of Judge Anna Diggs Taylor's ruling: "It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another.”
Well, they certainly do today. But where were they during the Clinton administration?

We have some wonderful and consistent liberal civil libertarians, especially in the Senate. Senators Patrick Leahy and Russ Feingold, in particular, are great examples of Democrats who care about this sort of thing--regardless of who happens to be in power. But we also have a huge number of allegedly liberal Democrats in both houses of Congress who were willing to cede immense power to President Clinton, then suddenly discovered civil liberties during the Bush administration.

Here, for example, is a statement made by Deputy Attorney General Jamie Gorelick to the U.S. Senate Intelligence Committee on July 14th, 1994:
"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General."
Gorelick's testimony had to do with the warrantless search conducted on the home of Aldrich Ames, a former spy for the Soviet Union. Ames would later be convicted on espionage charges and sentenced to life imprisonment. If you didn't hear much about the warrantless search at the time, don't feel too bad; very few people did. The Senate was, after all, in solidly Democratic hands, and the president happened to also be a Democrat. To President Clinton's credit, he did approve a congressional expansion of the Foreign Intelligence Surveillance Act (FISA) to cover his administration's illegal search of Ames' home--just as President Bush is pressing Congress for similar FISA revisions to cover his own illegal searches. But this was strictly a courtesy based on the logic of the Clinton administration, which held--as the Bush administration does--to a version of the unitary executive theory. According to the unitary executive theory, congressional regulation of executive branch duties, except when set out in the form of constitutional amendments, is non-binding.

President Bush has expressed his own commitment to the unitary executive theory through his signing statements, restricting enforcement of more than 750 new statutes, in which he states which parts of new legislation he intends to enforce. These signing statements probably do violate separation of powers, as Democratic politicians contend, but so did Clinton's signing statements restricting enforcement of 140 statutes.

And signing statements would have been rendered largely superfluous by the line-item veto, granting the president the authority to veto specific parts of a bill without vetoing the entire bill. President Clinton asked the Republican Congress to pass the Line-Item Veto Act in advance of the 1996 elections, and they did. President Clinton used the line-item veto to strike down 82 statutes, but the Supreme Court's 6-3 ruling in Clinton v. City of New York (1998) struck down the Line-Item Veto Act on the grounds that it gives the president an unconstitutional amount of power over the national budget. Now the Bush administration has resurrected President Clinton's call for a line-item veto, and a bill passed by the U.S. House of Representatives in June would grant a limited line-item veto with a six-year time limit. The line-item veto debate is a legacy of the Clinton administration, one that threatens to grant the president more power to make budget-related decisions than he has had at any other time in U.S. history.

That wasn't the Clinton administration's only contribution to the imperial presidency. As the Federal Intelligence Surveillance Act (FISA) was passed in 1978 to regulate executive branch behavior, so was a lesser-known piece of legislation called the Independent Counsel Act. The Act, passed in response to Watergate, established an independent prosecutor who would operate outside of the executive branch, including the U.S. Department of Justice, and whose role would be to investigate alleged executive branch misconduct. The 13th independent counsel was the infamous Kenneth Starr, who investigated President Clinton for five years on a variety of charges, most notably the Monica Lewinsky affair.
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