Unitary Executive & Constitutional Crisis
Presently we are in a time of Constitutional Crisis. As in times past the one branch of our government has assumed power that is not expressly outlined to it in the Constitution. Our President has assumed a doctrine of Presidential policy called the Unitary Executive. This doctrine posits that because the President is oath bound to defend the Constitution then the President is also responsible for interpreting the Constitution, and since the President is the only nationally elected official the President is solely accountable for the way in which national policy is created.
This notion of Presidential supremacy over the scope of national policy and constitutional interpretation is something that goes against original intent of the framers of the Constitution. The philosophical crux of the Unitary Executive comes from a loose definition of Article II of the Constitution and Alexander Hamilton’s Federalist Paper 70, which speaks of the energy of a united executive. Lets first ignore the fact that Hamilton is speaking not of the power of the President but the benefit of having a single executive over that of a binary or triumvirate executive. But lets look instead at Federalist Paper 47 written by James Madison which states, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.†The idea of the Unitary Executive attempts to consolidate the defining aspects of the other two branches in the executive branch, something that the framers of the Constitution were expressly against.
The President has made numerous moves to assume the powers of the Unitary Executive since his election; I will concentrate on just three examples. The first examples being the President’s use of signing statements, a signing statement is a statement of the President’s view of a law that he is signing and how he assumes that this law will be enforced. The President has in a number of his signing statements rewritten or nullified bills he is signing into law, in the McCain anti-torture bill that went to his desk the President states, “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.†According to legal scholars the President in this pen stroke nullified any meaningful enforcement of the law by saying that as Commander in Chief and unitary executive the President has the right to ignore the law whenever he sees fit.
The second example of the Presidents exercising of the Unitary Executive doctrine is his tight control of information given to the Congress and to government oversight committees such as the General Accounting Office. Specifically is the President’s refusal to give any information concerning the Energy Task Force that Vice President Cheney over saw. Additionally has been the White Houses’ practice of vetting all studies coming from executive regulatory departments for information that is counter to administration policy. Thusly the President has maintained a strict control on the information that Congress has received when making decisions on policy.
Lastly the President has exercised the idea of the Unitary Executive to redefine or overturn already existing laws and signed treaties. The most evident example of this is the President’s reinterpreting of the Third Geneva Convention in the determination of prisoners of war. The treaty gives specific criteria of what constitutes a detained lawful combatant eligible for prisoner of war status in Article 4, the President made the choice of declaring any fighter not fitting that specific definition an unlawful combatant. In Article 5 of the treaty though it gives requirements for a competent tribunal to determine the status of any captured fighter that does not fit the criteria set in Article 4, a requirement that has not been carried out. The Fourth Geneva Convention states that fighters captured who are not prisoners of war must be treated humanely and when put on trial “not deprived of the rights of a fair and regular trialâ€. As it stands right now our collection of unlawful combatants has not even seen the inside of a courtroom. It should be noted that treaties ratified by the President and Senate become the law of the land, and standing law can only be reviewed and interpreted by the Judiciary according to the Constitution.
In closing our President through his aggressive application of the Unitary Executive Doctrine has created a Constitutional Crisis. He has attempted to create new law from the Oval Office and review and redefine existing law. The idea that these actions are in the model of the framers of the Constitution is patently false, the separation of powers and the limitations of the executive are were keystone ideas of the framers in the creation of this country to prevent the rise of a tyrant. The President’s actions set the precedent of a tyrant, and this is something that cannot be allowed to persist if our Republic is to persist in any form that we may recognize into the coming years.