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United States

Journal pudge's Journal: Unitary Executive 6

Journal by pudge

I know I wrote a bit on this already, but I didn't get into specifics; I just broadly stated that the Senators do not believe what they say about Alito letting the President do whatever he wishes.

But I keep seeing the politicians, and many others parroting them mindlessly, quote Alito's belief in the Unitary Executive Theory (UET), which they say means that Alito will not check the President's power, but let him do whatever he wishes.

This demonstrates an unfortunately pervasive, and fundamental, misunderstanding of the UET, one which Alito explained in his hearings: "The issue of ... the concept of the unitary executive does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the President."

So, for example, the UET does not say the President has the authority to conduct warrantless wiretaps; it says, rather, that if the Executive Branch has such authority, that the President controls that authority. The two issues are wholly tangential.

The point of the UET is to say things like, one department in the Executive Branch cannot sue another, because the President absolutely controls both departments, and he is responsible for any such disputes, and if the judicial branch were to intervene, it would violate the separation of powers. The theory focuses on Article II, Section 1, which states, "The executive power shall be vested in a President of the United States of America."

Despite the best attempts by the President's opposition to state otherwise, Alito never in any way expressed that the President will get special deference. Instead, Alito said that the would apply the Constitution to determine the proper scope of power, and his record as a federal judge clearly proves he will.

This discussion was created by pudge (3605) for no Foes, but now has been archived. No new comments can be posted.

Unitary Executive More

Unitary Executive

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  • As someone who has gone to great lengths in this journal to comment on constitutional minutae, I'm surprised that you've only posted one journal entry on the Bush / Wiretapping scandal to about 4 or 5 recent ones on various aspects of the Alito nomination. And that one journal basically said "Well, I don't know all the facts about this..."

    What accounts for this, to me, strange emphasis on the relatively unimportant Alito nomination compared with the relatively vital importance of checks and balances on
    • How is that off-topic? The unitary executive theory suggests that during "wartime," warrantless searches are okay. The problem is that the FISA court law allows them with a 72 hour grace period (formerly 24 hours.) Ignoring that was probably a really big mistake politically, whatever you think about the constitutionality of the law.
      • How is that off-topic?

        Because he is asking about me and my choices for what to write about, instead of Alito and the UET.

        The unitary executive theory suggests that during "wartime," warrantless searches are okay.

        Did you not read my journal entry? The UET says no such thing, whatsoever. The Democrats are lying when they say it does. Alito was very clear that his view of the UET has not one thing to do with the scope of Executive Branch's power.

        Consider the scope of Executive power is a circle inside a lar
        • The unitary executive as you describe it does imply unchecked presidential power. For example, suppose Congress passes a law outlawing sulphur dumping in daisy fields and puts the EPA in charge of enforcing it. Then the Army comes around and dumps sulphur in a daisy field. Since one executive branch, the EPA, can't sue the other, the Army, then how will the law be upheld?

          Or, if the President breaks a law, then under the unitary executive theory, the Dept. of Justice can't do anything about it.

          • The unitary executive as you describe it does imply unchecked presidential power.

            No, it does not.

            For example, suppose Congress passes a law outlawing sulphur dumping in daisy fields and puts the EPA in charge of enforcing it. Then the Army comes around and dumps sulphur in a daisy field. Since one executive branch, the EPA, can't sue the other, the Army, then how will the law be upheld?

            At root, this is a dispute between the Executive and Legislative branches. Regardless of who has the job of implementing t
    • As someone who has gone to great lengths in this journal to comment on constitutional minutae, I'm surprised that you've only posted one journal entry on the Bush / Wiretapping scandal to about 4 or 5 recent ones on various aspects of the Alito nomination. And that one journal basically said "Well, I don't know all the facts about this..."

      Because we still don't know the facts. I still don't know well how the program in question works, and I really have no idea if the power the President exercised in orderi

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