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The "Unitary Executive" and the Scope of Executive Power:

As co-blogger Jonathan Adler points out, Libertarian Party presidential candidate Bob Barr is one of many people who confuse the theory of the "unitary executive" with the claim that the executive has virtually unlimited power. Barr argues that "McCain has endorsed, in action if not rhetoric, the theory of the 'unitary executive,' which leaves the president unconstrained by Congress or the courts." In reality, the unitary executive argument is a theory about the distribution of executive power, not its scope. I addressed this crucial distinction in more detail in this post. I hate to quote myself, but I don't think I can improve on what I said then:

The idea of the unitary executive is simply that whatever power the executive branch has should be concentrated in the hands of the president. There can be no executive officials (such as the independent counsel) who are not subject to presidential control and removal. As Article II of the Constitution states, "the executive power [of the federal government] shall be vested in a President of the United States." It does not grant any executive authority to officials not under presidential control.

This is perfectly consistent with simultaneously believing that the scope of executive power is relatively narrow, and that the president has no authority to ignore laws enacted by Congress, including those that constrain many military and foreign policy decisions. Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X....

Constraining presidential authority in this way does not go against the theory of the unitary executive. What Congress cannot do without contradicting the theory is pass a law allocating authority to decide whether to do X to executive officials who are exempted from presidential control and removal.

Barr's claim that McCain supports unlimited executive power "unconstrained by Congress or the Courts" is also strange in light of the fact that McCain sponsored the McCain Amendment forbidding the use of torture, one of the best-known congressional efforts to cut back on the Bush Administration's extreme assertions of executive authority.

I am no fan of McCain, who has many genuine shortcomings from my libertarian perspective. To the extent that I support his candidacy, it is primarily because a McCain victory is the only hope for preserving divided government, which is one of the most important constraints on the growth of the state. Nonetheless, it is not true that McCain has endorsed unconstrained executive power.

UPDATE: TalkLeft criticizes this post, arguing that the Bush Administration has claimed that the unitary executive theory does indeed justify unlimited presidential power. TalkLeft's post gives several examples of Bush Administration officials claiming extremely broad presidential power. However, none of the quotes in question claim that power on the basis of the theory of the unitary executive. One of the quotes mentions the "unitary executive branch" in passing, but rests its claim of broad executive authority on the Commmander in Chief Clause. And even if the Bush Administration has misused the term "unitary executive" on occasion, that is no reason for the rest of us to do so.

The post also cites a 2001 speech by Samuel Alito arguing that "all federal executive power is vested by the Constitution in the President." This statement, of course, is clearly compatible with strong judicial and congressional limits on executive power. Executive power can be narrow, yet still be entirely vested in the hands of the president. As Alito himself stated at his confirmation hearing:

The question of the unitary executive . . . does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive.

Finally, TalkLeft claims that the theory of the unitary executive (even as I construe it) is "self-evidently wrong" because of the Spending Clause and the Senate's power to confirm certain presidential appointees. I don't see how the existence of the clauses invalidates the theory that all executive power lies in the hands of the president. Rather, the existence of the Spending Clause simply shows that the power to control federal spending is not part of the power of the executive branch. Similarly, the Senate's confirmation power simply allows the Senate to veto certain presidential appointments. To use Alito's terminology, neither says anything about the question of "who controls whatever power the executive has."

Related Posts (on one page):

  1. The "Unitary Executive" and the Scope of Executive Power:
  2. McCain, Conservatives & Judges:
Oren:
What I fail to understand is how we got to discussing the unitary executive in the first place. Morrison v. Olson pretty clearly slams the door shut on any real limitation of Congress' power to create positions not directly beholden to the POTUS.
7.18.2008 2:49am
Thomas_Holsinger:
This statement should be qualified:

"... the president has no authority to ignore laws enacted by Congress, including those that constrain many military and foreign policy decisions. Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X...."

Actually a President does have the "power" to order subordinates to commit otherwise criminal acts, and shield them from criminal liability for doing so. It's called the pardon power. This won't shield him from prosecution when he leaves office, but I recall something which might - I think the term was something like "executive privilege in conduct of office."

There are other means, and examples, of a President or Executive branch officers having a privilege to violate criminal statutes. Even during the Civil War, Union Army regulations, including but not limited to the Articles of War, forbade the summary execution of captured enemy unlawful combatants. Trials were required. Summary execution of captured lawful combatants, i.e., POW's, was flat out murder and in fact often punished as such.

There was a time-honored practice, however, of retaliatory execution of enemy POW's, without trial for atrocities committed by the enemy. The leading example of this in American history was the execution of about 50 Confederate POW's following the Fort Pillow Massacre. Those executions were done by subordinates acting without formal authorization, and possibly without even tacit authorization, but they absolutely did motivate Confederate commanders to at least nominally forbid murders and executions of captured Union colored troops.
7.18.2008 3:06am
Dilan Esper (mail) (www):
You are half right. The traditional unitary executive theory is an unrealistic argument that administrative agencies that helped save the American economy are unconstitutional and that all executive power must be reposed in agencies that are subject to the partisan political interference of the President.

But the Bush Administration has put forth a unitary executive theory that DOES expand executive power, claiming that all authority over military and foreign affairs is reposed in the President, despite the clear language of the Constitution that such powers reside in Congress. That may not be the traditional unitary executive theory, but it is the one that is reshaping the balance of constitutional powers right now (as noted, the traditional unitary executive theory is no more likely to ever take hold than unicorns are likely to inhabit the earth), so there's no reason why it shouldn't be the one that is discussed in the campaign.
7.18.2008 3:10am
Thomas_Holsinger:
"partisan political interference" = self-government. Gotta keep them ignorant backward voters out of the picture. They resent it, and interfere, when right-thinking elites, who only have the best interests of the ignorant masses at heart, make them do what any right-thinking person should WANT to do.
7.18.2008 3:28am
neurodoc:
Ilya Somin: "I am no fan of McCain, who has many genuine shortcomings from my libertarian perspective."

So, are you a fan of Bob Barr, the Libertarian Party presidential candidate? How about of Ron Paul, admired by many libertarians? (Me, neurodoc: NEITHER)
7.18.2008 6:18am
JonC:
Very informative post, Prof. Somin. One quibble with this statement: "To the extent that I support [McCain's] candidacy, it is primarily because a McCain victory is the only hope for preserving divided government, which is one of the most important constraints on the growth of the state."

Not to completely re-hash this argument, but I've always been skeptical of the claim that divided government inevitably constrains the state. Sure, there are some data points in that direction (e.g. 1995-2000), but then again, Nixon, presiding over a Democratic Congress, created the EPA, price controls, etc., etc.
7.18.2008 8:26am
PersonFromPorlock:
Dilan Esper is correct. The 'unitary executive' theory that the Bush White House has espoused is that the President, as Commander-in-Chief, has complete ('unitary') power over the conduct of wars and that Congress and the Courts can butt out. I agree with your comments, too, but they simply don't apply to the issue at hand.
7.18.2008 9:30am
Trevor Morrison (mail):
You're mostly right about the distinction, Ilya, but I think you go too far when you say that support for the unitary executive theory "is perfectly consistent with simultaneously believing . . . that the president has no authority to ignore laws enacted by Congress."

Consider statutory limits on who can be appointed to certain executive offices, or requirements that certain statutorily created officers submit periodic reports to Congress on certain issues. Proponents of a robust unitary executive theory object to such laws as intruding upon the President's supposed exclusive authority to control the executive branch, even when the executive actor in question is entirely a creature of statute. In these sorts of cases, the unitary executive thesis that, as you put it, "[t]here can be no executive officials . . . who are not subject to presidential control" does indeed entail believing that the President has the authority to ignore (and/or to order that other executive actors ignore) certain federal laws.
7.18.2008 10:18am
John (mail):
While you are obviously right, you are fighting a losing battle. It's like the meaning of "neocon," which has been altered beyond all recognition.

But good luck!
7.18.2008 10:51am
Chris Bell (mail) (www):
Law profs mean one thing, but PersonFromPorlock is right. Non law profs often use the phrase 'unitary Executive' to mean 'unilateral Executive'.
7.18.2008 10:57am
trad and anon:
I think people who are not lawyers are completely entitled to use "unitary executive" to mean "the version of the unitary executive that's actually relevant to contemporary politics" which is Bush's theory of unconstrained Presidential power. The fact that some law professors somewhere propose different versions of the theory is irrelevant to the average person.
7.18.2008 11:22am
Jay:
trad and anon--So can you point to anyone from the administration actually using the phrase that way? I feel like I only hear "unitary executive" in two situations--1) by conservative-to-libertarian law professors in the academic sense Ilya describes; 2) by Bush administration opponents on the left, to describe the administration's approach to power. I've never heard anyone on the right use it to mean unlimited executive power against the other branches. In fact, I've heard many on the right, e.g., then-Judge Alito at his confirmation hearings, explain the distinction cogently and repeatedly. At some point it just seems like sloppiness or bad faith on the part of administration critics to ignore the establishmed meaning.
7.18.2008 11:41am
MarkField (mail):
Dilan and PfP have it right. I think of the two distinct theories as the "weak" unitary executive and the "strong" unitary executive. The Bush Administration has (as is its wont) used a legitimate term to mask an illegitimate power grab.

I am curious, though, about this comment: "McCain sponsored the McCain Amendment forbidding the use of torture". This is a rather odd characterization. The Congressional statutes accomplished two things: they purported to give immunity to acts of torture previously committed; and they defined "torture" in a novel way which the Administration proceeded to declare did not preclude anything which it had been doing, including acts which clearly do constitute torture (e.g., waterboarding). The notion that McCain somehow limited the Administration seems unsupported (at least to the Administration).
7.18.2008 11:43am
PLR:
The notion that McCain somehow limited the Administration seems unsupported (at least to the Administration).

And of course that particular bill was signed by Bush with a typical signing statement, reserving to himself as the unitary executive the right to ignore it.
7.18.2008 11:55am
Justin (mail):
I was going to comment on the (incorrect) assertion that the Unitary Executive theory has nothing to say on the position that "Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X" and that these laws can be ignored (think, for instance, the UE arguments relating to the FISA...and I know not all the Bush FISA arguments relates to the UE).

but I feel Trevor beat me to it, and there's not much eles I can add. Mainly, what I have to add is that the Unitary Executive theory (as modernly practiced) also argues that once general authority has been granted to an executive official, specific regulation of that authority - including statutes saying that "the official (and, by consequence, the President) cannot do X" - interferes with the President's authority under Article II to regulate his or her own officials.
7.18.2008 11:55am
Bob from Ohio (mail):
Let's have a few quotes from a senior Bush Adminstration official that actually expresses the Barr/Esper/PFP fantasy of unitary executive theory.

Bloggers and even National Review writers do not count.

You guys do realize that assertions of presidential war making power comes from the C-in-C clause and not the Executive Power clause?


administrative agencies that helped save the American economy are unconstitutional


Could they have not saved the economy with presidential control? Is it their powers, and not their organizational structure, that makes them effective? And really, are they that effective?
7.18.2008 11:57am
ejo:
could it be that the president has his own role to play in the Constitution and his own authority based on the document-that seems to be a lot closer to what is meant by academics in this unitary executive theory. Our constitution does mention the role in passing, doesn't it? to many, it appears only the Court and the Congress have any power under the Constitution-they are, of course, wrong. that the president has been quite upfront in asserting his constitutional authority and defending it against encroachment by the other branches seems to be what offends folks.
7.18.2008 12:00pm
Laura S.:
It seems to me that this gets quite a bit of attention in the Federalist Papers: in particular that neither Congress nor the Courts can rely on an independent act of any kind to execute the law against the President.

But doesn't the constitution provide a remedy? Impeachment and/or periodic elections.
7.18.2008 12:00pm
Thales (mail) (www):
"I think people who are not lawyers are completely entitled to use "unitary executive" to mean "the version of the unitary executive that's actually relevant to contemporary politics" which is Bush's theory of unconstrained Presidential power. The fact that some law professors somewhere propose different versions of the theory is irrelevant to the average person."

Very true. I would add that *some* advocates of the unitary executive theory (as the technical meaning understood by law professors), such as John Yoo and David Addington, *also* advocate for expanding the scope of executive power, sometimes referring to "inherent Article II powers of the President" or a similar formulation to assert dubiously grounded military, domestic espionage and detention without trial abilities. Additionally, many of the President's signing statements have included a reference to the unitary executive branch while asserting an ability to ignore portions of the statute that he claims conflict with his Article II authority, and not always in cases that would involve the technical meaning of the unitary executive theory. It is no wonder that the public is confused.
7.18.2008 12:06pm
Thales (mail) (www):
"What I fail to understand is how we got to discussing the unitary executive in the first place. Morrison v. Olson pretty clearly slams the door shut on any real limitation of Congress' power to create positions not directly beholden to the POTUS."

Principled advocates of the unitary executive theory, in Somin's sense, believe Morrison and Humphrey's Executor were incorrectly decided.
7.18.2008 12:10pm
frankcross (mail):
Actually, even the assumption of greater foreign policy powers isn't the unitary executive. It would be something like the unitary commander in chief. At the framing, at least, executive authority was domestic and the foreign powers were called federative authority. But few disagree that we have a unitary commander in chief, the issue is the scope of powers that goes with commander in chief. So the issue is not really the "unitariness" of the commander in chief but the breadth of its unitary power. So teh unitary executive doesn't reallyadvance that ball either.
7.18.2008 12:15pm
PersonFromPorlock:
Bob from Ohio:

You guys do realize that assertions of presidential war making power comes from the C-in-C clause and not the Executive Power clause?

I have proposed on many threads that the only way to reconcile executive branch autonomy with Congress's Article I power to regulate the military is to presume that C-in-C is a separate office from the presidency, one whose only qualification is that its incumbent also be the President.

If so, then when the person-who-is-president puts on the brass hat, he is assuming an office that is subordinate to the Congress. He gets no executive power from it, only responsibility, and the presidency neither gains nor loses power because the C-in-C job doesn't touch it.

It's possible that this view may not be universally shared.
7.18.2008 2:38pm
Bob from Ohio (mail):
PFP: I was not talking about the true scope of the C-in-C power one way or another. Only that the advocates of broad war making powers base this power on the C-in-C clause. They may be wrong of course.
7.18.2008 3:05pm
Dilan Esper (mail) (www):
Let's have a few quotes from a senior Bush Adminstration official that actually expresses the Barr/Esper/PFP fantasy of unitary executive theory.

Bob, it's boilerplate language in all of Bush's signing statements on military or war on terror legislation.

Here's a typical example:

"The executive branch does not construe this provision to impose any independent or affirmative requirement to share such information with the Congress or the Comptroller General and shall construe it in any event in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair
foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties."

Here's another:

"In addition, a number of provisions of H.J. Res. 2 are inconsistent with the constitutional authority of the President to conduct foreign affairs, command the Armed Forces, supervise the unitary executive branch, protect sensitive information, and make recommendations to the Congress. Other provisions unconstitutionally condition execution of the laws by the executive branch upon approval by congressional committees."

Here's a third:

"Many provisions of the Act deal with the conduct of United States intelligence activities and the defense of the Nation, which are two of the most important functions of the Presidency. The executive branch shall construe the Act, including amendments made by the Act, in a manner consistent with the constitutional authority of the President to conduct the Nation’s foreign relations, as Commander in Chief of the Armed Forces, and to supervise the unitary executive branch, which encompass the authority to conduct intelligence operations."
7.18.2008 3:09pm
Dilan Esper (mail) (www):
If so, then when the person-who-is-president puts on the brass hat, he is assuming an office that is subordinate to the Congress. He gets no executive power from it, only responsibility, and the presidency neither gains nor loses power because the C-in-C job doesn't touch it.

A military commander in our system is always subject to civilian authority. And since the Constitution expressly grants the war powers to Congress, it is perfectly clear that this is correct, as an original matter.

The problem is tha the John Yoos of the world are also correct that from the very beginning of the Republic, Presidents have pushed back against this and have established a longstanding tradition of independent Commander in Chief authority.
7.18.2008 3:11pm
Kazinski:
Dilan Esper:

...claiming that all authority over military and foreign affairs is reposed in the President, despite the clear language of the Constitution that such powers reside in Congress.

Where is that clear language? The language is pretty clear that it is the executives's role:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls...

It is explicitly clear by "make Treaties" that the President conducts foreign affairs, and I don't think "The President shall be Commander in Chief of the Army and Navy of the United States" is in any serious dispute.

Congress has a role in military and foreign affairs limited to appropriating money, declaring war, ratifying treaties, confirming ambassadors, generals and Secretaries of War and State, and not much else. Except of course sticking their two cents in.
7.18.2008 3:27pm
PLR:
A military commander in our system is always subject to civilian authority. And since the Constitution expressly grants the war powers to Congress, it is perfectly clear that this is correct, as an original matter.

Boldface type added for emphasis.

Off topic, perhaps Professor Bernstein will comment at some point about the somewhat different relationship between the IDF and the elected civilians. I know the relationship is different, but am not sure whether it arises due to an organic document or simply longstanding practice.
7.18.2008 3:27pm
SIG357:
To the extent that I support his candidacy, it is primarily because a McCain victory is the only hope for preserving divided government, which is one of the most important constraints on the growth of the state.

Given McCains fondness for sticking it to the Republicans and working with his "good friends" in the Democratic Party, I can only assume that you expect the GOP to win back Congress. Failing that, there will be no divided government regardless of whether McCain or Obama wins.
7.18.2008 3:43pm
SIG357:
it is not true that McCain has endorsed unconstrained executive power.


I don't know of anyone who has endorsed unconstrained executive power, including Bush. Now, there are plenty of advocates out there for unconstrained judicial power .....
7.18.2008 3:49pm
SIG357:
Dilan Esper, I don't see anything in those signing statements which reflect the view that Bush is claiming an unprecedented scope for Presidential power. Perhaps you can elaborate if you think otherwise.
7.18.2008 3:54pm
PersonFromPorlock:
Kazinski:

...and I don't think "The President shall be Commander in Chief of the Army and Navy of the United States" is in any serious dispute.


But we also have: "To make rules for the government and regulation of the land and naval forces," which gives Congress authority over the C-in-C - which is incompatible with the separation of powers if C-in-C is part of the presidency. That's why I say they're different jobs and the phrase "The President shall be Commander in Chief" simply establishes the sole qualification for being C-in-C.
7.18.2008 4:14pm
PLR:
Dilan Esper, I don't see anything in those signing statements which reflect the view that Bush is claiming an unprecedented scope for Presidential power. Perhaps you can elaborate if you think otherwise.

You should read DE's posts with more care. Not only did he not use the word "unprecedented," he explicitly referred to historical precedent.
7.18.2008 4:18pm
SIG357:
PLR, I suggest that you read DE's posts yourself. This one, for instance.

But the Bush Administration has put forth a unitary executive theory that DOES expand executive power, claiming that all authority over military and foreign affairs is reposed in the President, despite the clear language of the Constitution that such powers reside in Congress.

The claim that Bush seeks to "expand" executive power can reasonably be interpeted to mean that this action is new or "unprecedented". But if it makes you happy, simply substitute the word expanded for unprecedented in my question.

More DE:

The problem is tha the John Yoos of the world are also correct that from the very beginning of the Republic, Presidents have pushed back against this and have established a longstanding tradition of independent Commander in Chief authority.


Well, yes. But that being the case it's hard to understand the claims that Bush is seeking to expand executive power.
7.18.2008 4:35pm
Dilan Esper (mail) (www):
Where is that clear language?

What Porlock said. Further, in addition to the power to make rules for the armed forces, Congress also had the power to declare war, to fund or defund military operations, and to make rules for captures. That's all the war power, and it is an Article I power. The President simply commands the army and navy within the limits set out by Congress.

Also, you left out of your discussion the clause that the President must "take care that the laws be faithfully executed", which is as clear a statement as can be that the executive power does not extend beyond limits set by Congress.

And as I noted, military commanders are always bound by the law. So the "commander in chief" power cannot be a power to engage in conduct that Congress has barred.

As I noted, though, the ship has sailed, and we now have to deal with 200 years of historical practice in which Presidents have seized powers that were originally to be held by Congress. As a matter of original understanding, however, the President was to have no power to contravene Congressional limitations on his or her war powers.
7.18.2008 4:36pm
Dilan Esper (mail) (www):
SIG:

I do think there's a tradition of Presidents claiming independent commander in chief power. I do not, however, think that the tradition establishes a clear consensus that the President has the power to disobey any congressional regulation of the war power.

I never used the word unprecedented. I do, however, think that Bush has claimed powers that would constitute a severe expansion over what the consensus view has been with respect to the balance of power between the branches. To particularlize it, I believe that under Bush's claimed powers, Youngstown Sheet &Tube and Ex Parte McCardle should be overruled, and the jurisdictional holding of Ex Parte Quirin should also be overruled.
7.18.2008 4:39pm
MarkField (mail):
Let me add that if you don't accept PersonfromPorlock's view, then the only real alternative is to treat the CinC position as an inherent part of executive power. But in that case, the "weak" UE theory cannot and does not give the President any power that he didn't have any way. Only a claim of enhanced executive power under a "strong" version of UE could do that. To that extent, then, Bush Administration claims of extensive CinC power are themselves evidence that it has adopted the expansive version of UE theory.
7.18.2008 5:01pm
MarkField (mail):

none of the quotes in question claim that power on the basis of the theory of the unitary executive.


I don't find this very persuasive as a defense. The Bush Administration has consistently recited the UE theory in, for example, its signing statements and elsewhere, particularly in the context of military and foreign affairs. It has also consistently asserted expansive Presidential power, particularly in the context of military and foreign affairs. The fact that it never combined these two passages (assuming that to be true) hardly exculpates the Administration; in fact, it suggests that it is deliberately taking advantage of the confusion by parsing the language overfine. If it wants clarity, it surely can make the distinction by repudiating the criticisms. It hasn't done so.
7.18.2008 5:07pm
Bob from Ohio (mail):
Dilan, I don't see how your quotes support this assertion:


the Bush Administration has put forth a unitary executive theory that DOES expand executive power, claiming that all authority over military and foreign affairs is reposed in the President


Where is the assertion that "all" authority rests with the President? Why did the President get AUMF resolutions aaginst Iraq and after 9/11 then?

At most, the signing statements assert the view that the day to day conduct of military, intelligence and foreign affairs rests with the President. Is this not correct without reference to the unitary executive theory?

The current administration is not aserting much more power, if any, than many, many other presidents. Broad president power over military affairs is hardly unique nor is it without Supreme Court approval.

The Supreme Court has recognized the "plenary authority" of the President in foreign affairs in Curtis Wright, for instance.

Plenary is defined as:

1. Complete in all respects; unlimited or full

So, I guess FDR was asserting a unitary executive power as broad as President Bush.

As did Bill Clinton. As will Barack Obama.

For that matter, Harry Truman would disagree with the consensus of Youngstown Sheet &Tube.
7.18.2008 5:27pm
Oren:
At most, the signing statements assert the view that the day to day conduct of military, intelligence and foreign affairs rests with the President. Is this not correct without reference to the unitary executive theory?
It's certainly not correct in reference to our Constitution, which vests in Congress the power to make rules governing the military forces.

Perhaps I'm not understanding your use of the phrase 'day to day'?
7.18.2008 6:15pm
Oren:
Mark, I absolutely agree that the Bush administration has conflated expansive and unitary executive theories. Ultimately, however, their confusion (or intentional intellectual-parasitism) does not change the underlying merits of either theory.
7.18.2008 6:17pm
Oren:
Off topic, perhaps Professor Bernstein will comment at some point about the somewhat different relationship between the IDF and the elected civilians. I know the relationship is different, but am not sure whether it arises due to an organic document or simply longstanding practice.
All the IDF report to the chief of the general staff who is appointed by, and reports to, the minister of defense in smaller matters and to the cabinet-at-large for major decisions. The MoD is the 2nd most powerful political job in the country, usually held by a political lackey with no relevant experience but occasionally a good man (Ehud Barak, for instance) falls into it.
7.18.2008 6:24pm
LM (mail):
Oren,

The MoD is the 2nd most powerful political job in the country, usually held by a political lackey with no relevant experience but occasionally a good man (Ehud Barak, for instance) falls into it.

I don't think that generalization holds up, considering that the roster of past MoD's includes Ben-Gurion, Moshe Dayan, Shimon Peres, Ezer Weizman, Menachem Begin, Ariel Sharon, Yitzhak Rabin, Yitzhak Shamir and, as you mentioned, Barak. There have been a few weak sisters recently, but on the whole it's a pretty damn qualified group.
7.18.2008 7:29pm
MarkField (mail):

Mark, I absolutely agree that the Bush administration has conflated expansive and unitary executive theories. Ultimately, however, their confusion (or intentional intellectual-parasitism) does not change the underlying merits of either theory.


Agreed.
7.18.2008 8:32pm
SIG357:
The President simply commands the army and navy within the limits set out by Congress.


A lot of you people are coming very close to asserting that the President is simply a servant of the Congress, one who must obey whatever instructions he is given.

Since I assume that you all have a better understanding of the the framework of government as described by the Founders (and as acted out in practice by forty-something presidents since then) I'll just chalk this talk up to a severe case of BDS and figure you'll get over it in time.
7.18.2008 10:01pm
SIG357:
I believe that under Bush's claimed powers, Youngstown Sheet &Tube and Ex Parte McCardle should be overruled, and the jurisdictional holding of Ex Parte Quirin should also be overruled.


I don't think that that's a justifiable claim. It's not as if Bush has attempted to seize private property, the matter at issue in Youngstown. As for the general principle that the President can only do that which he is authorized to do by the Constitution or statute law, the Bush administration has endorsed that view, as all presidents do.
7.18.2008 10:11pm
Oren:
A lot of you people are coming very close to asserting that the President is simply a servant of the Congress, one who must obey whatever instructions he is given.
The President is a servant of Congress with respect to the military forces -- he cannot declare war, he cannot provide funding for the troops and he cannot set the rules by which they fight.

This diminishing of the President's authority wrt war-marking, however, does not much change the balance of powers since the CinC role is such a small and insignificant part of the President's overall job. The President is a lot more than an elected 5-star General.

As for the general principle that the President can only do that which he is authorized to do by the Constitution or statute law, the Bush administration has endorsed that view, as all presidents do.
If I had any faith that his view of the Constitution was in general agreement with mine, this wouldn't be a problem. Since Bush apparently believes that the Constitution authorizes him to crush a child's testicles, we'll have to part ways.

By the way, I have no doubt that a President Obama would be able to stay within the Constitution either. He would, as they all have, stretch its power to accomplish his goals.
7.18.2008 10:21pm
SIG357:
Since Bush apparently believes that the Constitution authorizes him to crush a child's testicles, we'll have to part ways.


Have I pointed out recently that you're a moronic moonbat whose most distinctive feature is his confusion of his own passing mood swings with actual thought?

As I say, you people are motivated more by BDS than any actual theory of law. Nothing that Bush has ever said can possibly be construed as "I have the right to crush a childs testicles". This sort of crap simply makes eveything else you say suspect.



The President is a servant of Congress with respect to the military forces -- he cannot declare war, he cannot provide funding for the troops and he cannot set the rules by which they fight.

No, those three conditions do NOT make his the servant of Congress with respect to the miliary. The "rules by which they fight" is not a magical incantation which allows Congress to micro-manage every aspect of the military. The actual prosecution of a war is the responsibility of the President. Congress did not and could not tell FDR to invade France at a different spot and on a different day.
7.18.2008 10:38pm
Oren:
Congress did not and could not tell FDR to invade France at a different spot and on a different day.
Agreed entirely -- that would not be a "rule", in any meaningful sense. Surely you understand the difference between a rule and an order.
7.19.2008 1:48am
LM (mail):
SIG,

The right wing illegal immigration hawks who wanted Bush impeached, and the clique of like-minded conservative Congressmen, like Dana Rohrabacher who said Bush was mean-spirited and arrogant and threatened him with impeachment, would you say they were motivated by BDS?
7.19.2008 1:56am
Thomas_Holsinger:
John Yoo's major argument in The Powers of War and Peace was that the relative potency of the powers of the Executive and Legislative branches in war matters has never, ever, been a fixed constant, and has in fact constantly varied based on political factors and the needs of the moment.

The search for a definitive demarcartion line here is far more illustrative of the personal issues of those seeking such a line, including the professional myopeia of lawyers, than of anything founded in law or politics.
7.19.2008 6:57pm
Thomas_Holsinger:
Oren,

Your statement, "Since Bush apparently believes that the Constitution authorizes him to crush a child's testicles, we'll have to part ways." establishes that your personal issues here overshadow everything substantive you might say. Note in particular how you personalize it, with my use of boldface to draw attention to your affliction with Bush Derangement Syndrome.

You have no conception of real war or real evil.
7.19.2008 7:04pm
Thomas_Holsinger:
And, as for those who take such an expansive opinion of the powers of Congress to "regulate" the war-making power of a President, consider how, years ago, I mouse-trapped a leftist yo-yo here into contending that Congress has the Constitutional power to enact laws forbidding American forces from using banned weapons against the enemy, such as tanks or aircraft.

Yoo's The Powers of War and Peace is definitive here. Each branch has as much war power as the other lets it get away with, with Congress's only direct and final check on the Executive being the power to withhold war appropriations. The only instance of Congress using that power which I can recall was in 1975 when it cut off military aid to the Republic of Vietnam, and that had such disastrous consequences that Congress ever since has only pretended it has such a power. and then only for partisan fund-raising purposes.
7.19.2008 7:38pm
Oren:
Your statement, "Since Bush apparently believes that the Constitution authorizes him to crush a child's testicles, we'll have to part ways." establishes that your personal issues here overshadow everything substantive you might say. Note in particular how you personalize it, with my use of boldface to draw attention to your affliction with Bush Derangement Syndrome.

My characterization of Yoo's position is accurate:

Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that. [pointless bolding to match yours].

You'll have to to better than bold a few pointless pronouns.

You have no conception of real war or real evil.
Do you seriously think you can magically dispense with the requirements of the Constitution of The United States by mere invocation of these words as some ritualistic talisman? War, evil, or otherwise, the President is bound to follow the Constitution.

[. . .] contending that Congress has the Constitutional power to enact laws forbidding American forces from using banned weapons against the enemy, such as tanks or aircraft.
Of course it does -- Congress could simply refuse to fund tanks and aircraft altogether. In fact, Congress has the power to dissolve the army entirely or, by mere inaction, to defund it entirely.

NB, I don't make any sweeping normative claims that you do. It is quite possible that Congress will make poor decisions with the effect of crippling vital war efforts. I take no stand on the relative wisdom of allowing Congress to have this power.
7.20.2008 3:49pm
Thomas_Holsinger:
Oren,

You said Bush believes that, not John Yoo, and Yoo said no treaty, not no law. You are now imitating Barrack Obama to the same effect. Your credibility is toast.
7.20.2008 11:35pm
Oren:
(1) Yoo explicitly said that there were situations where the President could torture in the face of a law to the contrary. I suggest you reread that interview to find it that hidden tidbit.

(2) Bush had plenty of time, opportunity and means to temper Yoo's distortions of law. His refusal represents either agreement or, perhaps, ignorance of his own DOJ's wholesale redefinition of the law.

(3) Funny you should talk of my credibility when the future prospects of neo-conservatism are effectively shot. We have seen the end of the Feith-inspired idiocy of the past 8 years.
7.20.2008 11:49pm