Sunday, March 2, 2008

The Office, Not the Person

The Unitary Executive and The Office of the Presidency

It's been suggested that no one is asking during this presidential horse race whether the person who takes office changes the office or whether the office changes the person. It's not quite accurate to say no one is asking. It's more that those asking aren't out in the spotlight of the media where the elements of public dialog are presented for mass consumption. I don't think it's a matter of the person being changed, it's more a matter of speaking with a forked tongue when they finally get to office, almost because they have to. For one thing, there is no national dialog that makes discussing what's really going on in making decisions available for public discourse. It's all packaged and wrapped in sound bite clichés that basically distract from the real matters that make government work.

When I discovered what the Unitary Executive Theory itself was, and who was both for it and against it, I discovered a whole world of people asking that question and looking at the structure of the office itself, how it could be reformulated to better serve the interests of power (and power is money, straight out), and for those concerned about the effects of reformulating it on the office of the presidency, how it could be prevented from better serving the interests of power. This is a bloodless struggle, but it's going on none the less. It's taking place in the boiler room of the Titanic, where what makes the ship move through the water is located, the very legal structure of the ship, the system that propels the bureaucracy, where you just apply energy (money) and make steam and the ship is propelled towards the ice bergs, no matter which Captain is on the bridge, because the ice bergs lie in the short cut to where the power wants to go.

None of that's in the news. It puts people to sleep.

But if you are the rich and the powerful, and you want to control this huge nation with its legally conscribed bureaucracy, your best investment is the executive branch. It has the most number of unelected professional elites who transcend the office holders, who the minions focus on for their brief moment to have any effect at all on that overly hyped day in November, the most chance for consistency of purpose to be carried out. That's why I don't even pay much attention to this personality contest, I look at their advisers, and who they are likely to be appointing to the heads of these bureaucracies to legally follow out the president's "orders" to operate the huge bureaucratic machinery of state. Folks like the head of FEMA we all remember Bush appointed, for example, heading a perfectly good agency like the blind, dry drunk who appointed him. That's how the power of money controls this country.

The wealthy and powerful who want the good Ship Titanic to go in their chosen direction invest their money in private think tanks. One not so obviously a think tank is called "The Federalist Society," and it comes across as an organization for legal theorist, judges and lawyers to schmooze together about the law. It has chapters in all the major law schools. It began in 1983 or so. It now has some 35,000 members. These are the people with their hands on the machinery of state. The laws. They all share a similar attitude towards the law. That attitude is now becoming the predominant one in the appointed judges that much of the recent controversy was over, the Federal prosecutors, and, significantly, in the recent appointments to the Supreme Court.

We are now approaching a Federalist Society weighted Supreme Court. The Federalist Society was started by the people who developed the Unitary Executive Theory. The UET is about increasing the executive branch's control over the bureaucracy, insulating it from and thereby decreasing the oversight by Congress which in its checks and balance role is supposed to make certain it administers the bureaucracy according to the laws that Congress has passed. Secrecy thus becomes an issue. Presidential minions not testifying before Congress thus becomes an issue. If you step back you can see it is a theory that moves towards a CEO style presidency. A CEO heads these private tyrannies we call corporations. How hard is it to make the connections?

"Fascism" is about the unification of the state, just as a corporation is a unified collective with a purpose, and it's structured much like a military organization, because militaries have evolved to be structured as a unified collective to accomplish a purpose.

These are structural matters. The word "freedom" means nothing whatsoever with these matters going on at the same time -- especially if these structural matters contradict our freedoms.

The person who finally sits in the oval office is concerned with structural matters. The Constitution is the law, the Constitution is about structural matters.

How do you say all that in a sound bite on the evening news? How do you make that dramatic enough for people to pay attention to what it all means so they can figure out what it means for themselves? Especially when you are a corporation, you own media, nuclear power plants, military industrial complex components, and your interest is profit, because it's mandated by this law (the structure) that "we" have that they give the stockholders a good return on their investment first and worry about what they are doing to the world as an afterthought.

One of the heroes of this silent, bloodless, but very hard fought battle is Christopher Kelley, who did his PhD dissertation on the Unitary Executive and the Signing Statements. A small, brief notice of this very complex issue made its way into the media, and it did so in a way that only managed to confuse people to think it had something to do with the actions of King George, and his henchman, Darth Cheney, mainly because the partisan battle is all anyone is interested in as they sit in front of their televisions and munch their popcorn. The media moguls know that, their well paid employees in their media mogul corporations are made aware of that, and that's how the news is manufactured so that the popcorn munchers will give their consent to the already carefully selected candidates, it hardly matters which, in the voting booths the first Tuesday in the appropriate November. (The headlines are making me sick now, I can't read them at this point in the horse race. It's the same every time.)

I've gotten to know Chris Kelley's work, and I keep tabs on his blogs where he keeps track of how the media screws things up, and more precisely, what actions are being taken in the executive branch, the judicial branch and the legislative branch on these dire and significant changes that actually do determine what the person in the office will be able to do when he gets there: Zone of Twilight and Media Watch.

One of the difficulties I've had in my discussions is getting rabid Bush haters to recognize that Clinton was also a promoter of the UET, and that any president is not going to give up his power willingly. It's built into the very structure of the job. That's what separates the rhetoric of ideology from reality. If you can't get past the rhetoric, then you won't get down into the boiler room of the Titanic to see what's really going on. You'll be sunbathing on the deck while th Captain pilots the ship, and dancing in the ballroom at night as the ship moves towards disaster. Chris is editing a book and I just got my eyes on a paper he wrote that will be a chapter in the book, that gives me all sorts of tasty details to work with concerning what Clinton did to promote the UET. It's titled:

The Unitary Executive and the Clinton Administration

The unitary executive and the George W. Bush administration seem indistinguishable. President Bush’s aggressive defense of his actions through the provisions of the unitary executive has brought the public focus of the theory as intertwined with this presidency with no consideration of its past. Thus for most Americans, before the Bush administration there was not unitary executive and after President Bush has left office there will be no unitary executive. As this chapter demonstrates, the unitary executive was there before Bush came to power, and in a Democratic administration to boot!

The Clinton administration often gets overlooked in the discussion of the push towards the expansion of presidential power. This story tends to begin with the Reagan administration and its dedication to restoring the powers of the presidency taken by an aggressive Congress in the years following Watergate and the resignation of President Nixon (so-called “imperiled presidency” thesis). The restoration continued through the first Bush administration, and the second Bush administration worked to restore the powers lost when the Clinton administration frittered them away for personal gain. While this is the story that partisans like to tell, it is, much like all partisan logic, void of certain truths. And one truth is that the Clinton administration behaved very much like its Republican predecessors, to the advantage of its successor.
This chapter will focus on two important ways that the Clinton administration exercised and advanced “unitarian” power: by pulling the executive branch agencies closer to the White House in order to advance political goals and by protecting the president’s right to exercise so-called “coordinate” constitutional power.

The Unitary Executive—The Theoretical Backdrop

The unitary executive theory began inside the Reagan Justice Department along with other members of the conservative legal organization, the “Federalist Society.” Those who advance its tenets often refer to themselves as “Unitarians,” though not to be confused with the religious sect that it shares a name with.

The theory argues that the presidency, as a coordinate branch of government, is both the only nationally elected public officer (thus able to speak for the nation) and responsible for independently interpreting the meaning of the Constitution. As the representative of the entire public, he may be held accountable for bills signed into law and for the way in which the law is administered. The core tenets of the theory gives the president the sole authority to remove inferior executive officers, give the president the power to direct inferior executive officers in their administration of the law, and finally provides the president with the power to veto or nullify the way in which inferior executive branch officers use discretionary executive power.

The unitary executive is a constitutional theory of presidential power. It argues that the president draws his power from three sources of the Constitution. First, the Vesting clause of Article II, Section 1 gives the president all of the executive power. This means the powers explicitly written into Article II and other executive power, or the so called prerogative power. Second, the Oath clause of Article II, Section 1 acts as a shield, protecting the president from enforcing any law independently determined to be unconstitutional. This responsibility is shared by the president with his attorneys in the United States Department of Justice, in particular the Office of Legal Counsel, and with his close advisors in the White House Counsel’s Office. And third, the Take Care clause of Article II, Section 3 obligates the president, with the advice and assistance of inferior executive officers, to take care that the laws are faithfully executed. As Michael Herz has argued, the “Take Care’ Clause insures that the president will not only execute the law personally, but also it obligates him to oversee the executive branch agencies to insure that they are faithfully executing the laws” as opposed to executing them independent of the president’s wishes or even to the wishes of some other body, such as the Congress.

Thus each president since Reagan has advanced these core tenets of the theory—using signing statements and OLC opinions to first refuse either defense or enforcement of “unconstitutional” law and second backing it up with an OLC opinion in defense.
While many believe that since the theory was born out of conservative gatherings that only Republican presidents have pushed its tenets, as I will show next, the Clinton administration positioned itself in 1993 to advance the cause of the unitary executive, though never using the term in defense of its actions.

Saturday, March 1, 2008