It depends on what you mean by, ‘Unitary Theory of the Executive’

June 26, 2008

While there’s plenty of activity at the Supreme Court this morning, the real fireworks are going on across the street at a hearing of the House Judiciary Committee, where John Yoo and David Addington are responding to lawmakers’ questions. Well, “responding to” is probably a little strong. Let’s say they’re engaged in some kind of dialog.

This exchange between Committee Chairman John Conyers (D-Mich.) and Addington was especially entertaining.

It seems like a straightforward enough question: “Do you feel that the Unitary Theory of the Executive allows the President to do things over and above the stated law of the land?” Addington, who’s been known to rely on the unitary theory from time to time, said he didn’t know what Conyers meant, he’d “seen it in the newspapers,” and added, “I don’t know what it is.”

Perhaps Addington is forgetful. He has a lot on his plate, so maybe this might jar his memory.

Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president.

The unitary executive notion can be found in the torture memo. “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas,” the memo said. Prohibitions on torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority…. Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

Yes, the theory Addington doesn’t recognize today happens to be the same theory he’s relied on to rationalize all kinds of presidential powers, including signing statements that have freed Bush from having to abide by pesky laws.

As for Yoo, there was also this interesting back-and-forth about just how far the executive branch can go.

For those who can’t watch clips online, here’s the transcript:

Conyers: Could the President order a suspect buried alive?

Yoo: Uh, Mr. Chairman, I don’t think I’ve ever given advice that the President could order someone buried alive. . .

Conyers: I didn’t ask you if you ever gave him advice. I asked you thought the President could order a suspect buried alive.

Yoo: Well Chairman, my view right now is that I don’t think a President . . . no American President would ever have to order that or feel it necessary to order that.

Conyers: I think we understand the games that are being played.

You should; they’ve been playing the games for years.

It would be nice if Conyers said to Yoo “I’ll just take the fact that you refuse to answer my question directly that your answer is ‘Yes, the president can order someone to be buried alive.’ but you’re just too chickenshit to answer directly.

I don’t think the “Unitary” executive theory means what the WaPo (or Steve) thinks it means. See, e.g., the wiki entry:

In American political and legal discourse, the unitary executive theory is a theory or doctrine of Constitutional interpretation that holds it is unconstitutional for Congress to create “independent” agencies, authorities, or other entities that exercise executive, and sometimes quasi-legislative or quasi-judicial, powers, governed by officials the President may be authorized to nominate, perhaps with the advice and consent of Congress, but he is not authorized to remove or discipline. It stems from an interpretation of the separation of powers and of Article II of the U.S. Constitution, that only the President is vested with the power to execute the laws in the executive branch.

Addington is just relying on a strong form of what powers the president has, and holds the view that “inherent” powers of the president can’t be restricted by congress, even if such inherent powers aren’t explicitly stated in Article II. Plus he conveniently ignores large sections of Article I when advancing these theories.

  • Maybe they should be put naked into a small, cold box with blaring music until they want to answer a few questions.

    Should take about three minutes.

  • citizen_pain said:

    Can’t they just call the Seargent at Arms and arrest these motherfuckers?

    Really. Contempt of Congress. Throw em in jail. The judge that the Dems asked to rule on the ignored-subpoenas for Miers and Ashcroft wondered out loud why they didn’t just charge them with Contempt of Congress. Start throwing them in jail and THEN sort it out.

  • I think Ugh is right on. The theory of the unitary executive addresses how power is divided between the President and administrative agencies, or what input Congress has in how administrative agencies do their work. It really doesn’t have anything to do with the extent of executive power.

    The position taken in the torture memos does not really address administrative agencies. Rather, it talks about the President’s authority versus that of Congress under the Constitution, i.e., whether federal laws banning torture are binding on the President if the President is acting in his constitutional role as commander-in-chief.

  • Well, it’s a little bit of both parts of the explanation of the theory. If there’s a Unitary executive, the President controls the DOJ. If he controls the DOJ, he can control how the laws are prosecuted – or not prosecuted.

  • I don’t understand why Sen. Conyers didn’t follow up and ask in which circumstances Addington’s definition of the Unitary Executive might allow the president to choose to not enforce, or to violate the law. It seemed like he let him off the hook at the end (unless there were more questions not on this video).

  • waterboard ’em until they give you the answer you want! i’m sure neither addington or yoo would have a problem with that

  • Contempt of Congress arrests are desperately needed. Or perhaps the members of Congress could just take advantage of the latest SCOTUS ruling and all buy a little friend to help them convince these repugnant sh*ts to take the high road and actually answer questions. Either option sounds delicious to me.

  • Wow, just … WOW. Can’t even answer a question. I can only assume that some small remainder of a conscience is preventing Yoo from admitting what an immoral, Constitution-hating loser he is.

  • Ugh is right about the definition of the Unitary Executive Theory.

    And you can bet Republican’ts will hold with that Theory right up until the day President Barack Obama tells the head of the Federal Reserve to drop (or raise) interest rates and claims the authority to force him to do it based on the Unitary Executive Theory. Then they will drop it like a hot potato.

    Addington is arguing something quite different. And that is that the Executive is not subject to any laws.

    That theory is called tyrany.

  • Conyers should have just dropped the phrase “Unitary Theory of the Executive” and had Addington answer the question… does the president have the right to ignore the law of the land at his discretion? …which was ignored in that clip. Did Conyers ever get back to it and what was Addington’s answer? (If the president does it, it’s not against the law.)

    This is all just frustrating rhetoric because without the threat of impeachment behind it, it is meaningless. These people are literally laughing at the dems attempts to question them because they know they are too chickenshit to do anything about it.

    Despite the fact there are still a few voices speaking out in the darkness, there is only one party…the money party…and it has two faces. Dems who changed their vote on the FISA giveaway became immediately $18,000 richer and they are not even trying to hide that fact. Stop being naive about American democracy. Until we get the money out of politics the majority of our representatives will continue to be bought and sold and lobbyists will write our laws. The telecoms proved justice is for sale in congress and with impeachment off the table there are no consequences for breaking the law

    Party leaders in China are ALL billionaires and that is what drives so many of our elected leaders today. We’ve bought into the pretty rhetoric and inspiring ideology much too often that now we aren’t even shocked by the resulting hypocrisy.

    Heros are quickly silenced or sold back to us compromised. The money party can be regulated in a true democracy by smart voting and activism. Pac blue has come together to do exactly that.

  • btw…Conyers is getting too old for his job and does a pretty bad job asking follow up. Whether he knows it or not he is actually providing cover for Yoo by not allowing him to answer a direct question without qualifying it. Hey Conyers, how about…” I want a direct answer to the question without any qualifications Mr. Yoo”…and on the buried alive question insist on a yes or no answer…but instead we get we can see what kind of game is being played here.

    Conyers makes himself look like the bad guy and still doesn’t get answers. He’s no good at trying to look mean or tough or direct but comes across as someone standing in his own shadow. He has good intentions but gets horrible results. I guess he’s literally all we have here though but comes across as cantankerous and hollow thinking he is pulling something off when in fact he is ineffective.

    When we we ever get term limitations in congress?

  • Confession: I did not watch the hearing today, but I have looked at several clips here and at TPM.

    At issue is whether the president can decline to execute laws passed by Congress that the president thinks are unconstitutional without seeking a ruling by the judicial branch. All of these administration people, including Addington, assert that the president is bound by the Constitution. That’s not a premise that anyone would argue with, but these people take it further. For them the reasoning is that it follows that if a law is unconstitutional, it cannot bind the president, and the president has no obligation to enforce it. Under the war powers granted to the president under the Constitution, the president has absolute sole authority to conduct war. So once any president’s war power has been activated by Congress, any law passed by Congress attempting to constrain his war power is unconstitutional, so he has no obligation to enforce or follow it if it interferes with that authority. The war power belongs solely to the executive – it is unitary in the president and only the president. Therefore if Congress or the judiciary tries to constrain the executive, those branches are stepping out of their constitutionally allowed roles. Those branches are the ones acting contrary to the Constitution, not the executive.

    I don’t think the Supreme Court has ever ruled that this war power is that broad. The steel mill case ruled otherwise.

    But there is another egregious part of this line of reasoning – it cuts the judiciary out of the equation. The president makes all determinations, and the court has no authority over him nor does the Congress.

    It is a line of reasoning to get around the constraints of Marbury v. Madison.

  • If Einstein couldn’t come up with a Grand Unitary Theory of the Executive, how can anyone expect Addington to do it?

  • What happens if and when Obama becomes president?

    Do Addington and other Republicans suddenly about-face and reverse their positions? Could Obama declare Addington an enemy combatant?

    Sorry… just fantasizing.

  • @lenko

    The way the laws read last week, President Obama could have order Addington arrested and held as an enemy combatant and he would have no access to a lawyer and coulod be tortured to get at the answers Congress was asking him. Good thing the Supreme court (for now) has allowed for habius corpus. eh” Addinton?

    I still think he could be arrested though. What fun..,

  • I think he just doesn’t understand the characterization of unitary executive as a “theory” when its a fact.

  • I understand that something like “unitary executive” started when Treasury Secretary Alexander Hamilton argued that President Washington could order light houses to be built along the U.S. coast without Congressional approval.

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