Like most progressives — actually, like most Americans — I want to see an impeachment of George W. Bush once it is officially determined that his wiretapping scheme is illegal as implemented. I am very comfortable saying “when” rather than “if” because he is hanging his hat on the "unitary executive" theory of executive power.
As it turns out, George W. Bush has been flexing this theory since his inauguration. I am considerably behind professional scholars in considering this, but I figure since I’m right in step with professional journalists, I’m okay. So I set out to find just what is involved in the theory and the arguments based on it. I found pdf documents that explain each side of the scholarly debate, and an article on FindLaw taking the position that Bush overstepped his legal authority (it is very difficult to find someone outside the Bush regime who says unequivocally that the executive branch has the power to ignore the intent of Congress and the letter of the law at will). Here are the scholarly pdf documents:
- The Unitary Executive in the Modern Era, 1945-2001
- Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency.
And here is the FindLaw article.
- How Much Authority Does the President Possess When He Is Acting as "Commander In Chief?"
Evaluating President Bush’s Claims Against a Key Supreme Court Executive Power Precedent
The first pdf document is one of a series of four that provides the rational underpinnings of Bush’s power grab; the second reviews the actions he’s taken using this justification.
By now it’s pretty obvious which side I come down on. The four-part series was interesting but obviously not an unbiased analysis. I reject justification of a current outlook based on an extensive reinterpretation of century-old events immediately for much the same reason I don’t call Thomas Jefferson a White Supremacist.
I came to my own conclusion partly based on the official Progressive argument based on Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, in which he noted the President’s power is at its lowest when acting against the stated will of Congress. I note in addition that, constitutionally, there are areas in which the President’s powers are non-existent. Regulating interstate commerce is one of those areas in which the Office of the President has only those powers that Congress delegates to it, and in this case there were numerous public statements that Congress delegated no new powers to the Office of the President prior to passage of the authorization to invade Iraq. There’s no question the Bush regime defied the intent and constitutional powers of Congress. There is no way to mistake the intent of Congress in this case.
The Constitution having established three co-equal branches of government, Congress and the Supreme Court have powers as unitary as the Office of the President. If the President can freely interpret the law, then Congress can enforce them directly and the courts can legislate. And there are times the Executive branch promotes that very viewpoint, most recently in considering New Hampshire’s abortion restriction laws (play the second audio file).
This unitary powers doctrine could lead to some really interesting conversations. For instance, the word of the Attorney General is not a "second opinion" when, under the unitary executive philosophy, the President can simply order the Attorney General to declare his orders legal on pain of termination. This is a task that could legitimately be claimed by the Judiciary; in fact, when there is a dispute between Congressional and Executive interpretation of the law it is the Supreme Court’s duty to resolve the dispute. But if each branch decides its own limits independently, we’ll have chaos, and the rule of law will simply end.
This is why we cannot allow the Bush regime to choose which laws it will follow, which philosophy it will espouse at any given moment. As Justice Douglass said in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer:
Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U.S. 52, 293 :
"The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." [343 U.S. 579, 630]
We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution.
There is no authorization in the Constitution that allows the Office of the President to break, rather than enforce, the laws of the nation. Anyone that thinks otherwise is unfit to hold the office. Impeachment, which we came to understand during the Clinton administration is a mere investigation rather than an inevitable eviction, is more than appropriate when a President assumes powers categorically denied the office by the Constitution.
So I say, impeach Bush. Give him the same chance to explain and defend himself that Clinton had. To do less would be unfair to Bush.Powered by Sidelines