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Imperial Presidency 101 - Unitary Executive Theory and the Imperial Presidency

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President George W. Bush Signing Legislation

President George W. Bush signs a piece of legislation. President Bush has issued more 130 "signing statements" intended to limit the executive branch implications of some 750 new laws, which some regard as an unconstitutional assertion of power.

Image courtesy of the U.S. House of Representatives.

The Big Question:

To what extent can presidential power be restricted by Congress?

The Constitution and Separation of Powers:

Some believe that the President holds broad power, citing this passage from Article II, Section 1 of the U.S. Constitution:
The executive Power shall be vested in a President of the United States of America.
And from Section 3:
... he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The view that the President holds total control over the executive branch is called the unitary executive theory.

The Unitary Executive Theory:

Under the Bush administration's interpretation of the unitary executive theory, the President has authority over members of the executive branch, functioning as a CEO or Commander-in-Chief, and his or her power is restricted only by the U.S. Constitution as interpreted by the Judiciary. Congress can hold the President accountable only by censure, impeachment, or constitutional amendment; legislation restricting the executive branch has no power.

The Imperial Presidency:

In 1973, historian Arthur M. Schlesinger Jr. wrote The Imperial Presidency, a groundbreaking history of presidential power centering on an extensive critique of President Richard Nixon. New editions were published in 1989, 1998, and 2004, incorporating later administrations. Although they originally had different meanings, the terms "imperial presidency" and "unitary executive theory" are now used interchangeably, though the former has more negative connotations.

Independent Counsel:

After Nixon's "imperial presidency," Congress passed a number of laws restricting the power of the executive branch. Among these was the Independent Counsel Act, which allows an employee of the Department of Justice, and thereby technically the executive branch, to operate outside of the President's authority when conducting investigations of the President or other executive branch officials. The Supreme Court found the Act to be constitutional in Morrison v. Olson (1988).

Line-Item Veto:

Although the concepts of the unitary executive and the imperial presidency are most often associated with Republicans, President Bill Clinton also worked to expand presidential powers. Most notable was his successful attempt to convince Congress to pass the Line-Item Veto Act of 1996, which allows the President to selectively veto specific parts of a bill without vetoing the entire bill. The Supreme Court struck down the Act in Clinton v. City of New York (1998).

Presidential Signing Statements:

Similar to the line-item veto is the presidential signing statement, in which the President signs a bill but also specifies which parts of a bill he or she actually intends to enforce.
  • Until the Reagan administration, only 75 signing statements had ever been issued.
  • Presidents Reagan, G.H.W. Bush, and Clinton issued a total of 247 signing statements.
  • President George W. Bush alone has issued 130 signing statements, which tend to be more sweeping in scope than those of his predecessors.

Possible Use of Torture:

The most controversial of President Bush's signing statements was attached to an anti-torture bill drafted by Senator John McCain (R-AZ):
The executive branch shall construe (the McCain Detainee Amendment) in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch ... which will assist in achieving the shared objective of the Congress and the President ... of protecting the American people from further terrorist attacks.

The NSA Terrorist Surveillance Program (TSP), aka Spygate:

President Bush openly violated the terms of the Federal Intelligence Surveillance Act (FISA) of 1978 when he ordered the NSA to spy on telephone calls without a warrant. He has relied primarily on the unitary executive theory in his defense of the policy.

A Short History of the Imperial Presidency:

President Bush's attempt to obtain increased wartime powers represent a troubling challenge to American civil liberties. But the challenge is not unprecedented:
  • The Sedition Act of 1798 was selectively enforced by the Adams administration against newspaper writers who supported Thomas Jefferson, his challenger in the 1800 election.
  • The very first landmark U.S. Supreme Court case, Marbury v. Madison (1803), established the power of the judiciary by resolving a separation-of-powers dispute between the President and Congress.
  • In Worcester v. Georgia (1832), President Andrew Jackson openly defied a Supreme Court ruling--the first, last, and only time that any U.S. president has done so.
  • During the American Civil War, President Abraham Lincoln took on unprecedented wartime powers and violated multiple civil liberties on a large scale, including due process rights for U.S. citizens.
  • During the first Red Scare following World War I, President Woodrow Wilson suppressed free speech, deported immigrants on the basis of their political beliefs, and ordered massive unconstitutional raids. His policies were so draconian that they inspired protesters to form the American Civil Liberties Union (ACLU) in 1920.
  • During World War II, President Franklin D. Roosevelt issued an executive order calling for the forced internment of over 120,000 Japanese Americans, as well as forced surveillance, ID cards, and occasional relocation for immigrants from other perceived "hostile" nations.
  • President Richard Nixon openly used executive branch law enforcement agencies to attack his political opponents and, in the case of Watergate, to actively cover up his supporters' criminal activities.
  • Presidents Reagan, H.W. Bush, and Clinton all actively pursued expanded presidential powers. One particularly stunning example was President Clinton's claim that sitting presidents are immune from lawsuits, a position the Supreme Court rejected in Clinton v. Jones (1997).
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