Unitary Executive

With the Alito hearings, there has been a considerable amount of discussion about the "unitary executive theory" which is something that I have only recently become aware of. I mentioned that topic on January 6 in my "No Law" post. Much of the discussion in the Alito hearings concerning presidential powers focuses on this concept.
From what I understand, the unitary executive theory implies that the President is the head of all executive government agencies. None exist outside of presidential authority. Congress cannot establish any agency either fully or partially independent of the President. That actually seems to make some sense to me constitutionally. I'm not sure how the Congressional Budget Office fits into this framework. Wikipedia says that "is a federal agency within the legislative branch of the United States government.
I heard today that this theory was evoked one time by President Reagan, six times by Bush Sr., no times at all by President Clinton, and 110 times so far by Bush Jr. Clearly, Bush is using it to establish a new legal precedent, but the question is, what precedent are White House lawyers attempting to establish by using this theory?
It dawned on me this evening, and I was immediately rewarded with feedback from a discussion on Public Radio, that the unitary executive theory is used to define the scope of presidential power as total. That fits with Alito's 2000 comments about executive power. It also seems to fit with how the phrase is used in Bush's signing statements. By total, I mean the president is stating that the exception to law that he is establishing applies to all agencies of government under the authority of the office of the president. Nobody is excluded, not the military, not the State Department, not the CIA, not the NSA, not the FBI, and the list goes on.
So when the president says he takes exception to any particular clause of any particular bill that he is signing, he takes that exception for all agencies within his power, virtually all agencies of government. When he says the unitary executive branch takes exception to the McCain Amendment, that means no agency of government will be subject to it as long as Bush is president.
I think a better understanding of the effect of this process might be had if we were to look back at something called the "line item veto." Again from Wikipedia, "In government, the line-item veto is the power of an executive to veto parts of a bill, usually budget appropriations. This enables an executive to nullify specific provisions of a bill, rather than only being able to approve or veto a bill in its entirety." Read the rest of this short definition for some background on that concept. It's interesting that the Supreme Court struck down that power when it was given to President Clinton. I had forgotten about that, if I ever knew it. But look at the reason why it was struck down, "that unilateral amendment or repeal of only parts of statutes violated the U.S. Constitution."
Using terrorism as justification, President Bush is using signing statements, the unitary executive concept, and his powers as Commander in Chief to essentially line item veto congressional bills when they are sent to him for signing. That is the legal precedent he and his White House lawyers seem to be trying to establish. Let's hope that somebody brings this issue to the courts soon.

Divine Power

It is now official. George W. Bush has declared himself to be the totalitarian executive. TPM reports that President Bush has issued a "Huge new claim of executive privilege" which shields the White House from congressional oversight and legal contempt charges. In other words, at the discretion of the President of the United States, the entire executive branch of government is above the law. Only God has more power than George W. Bush.
While some may be surprised by this and while Republicans just scoff at it since it lines up with power grabs by other recent Republican presidents, I am not surprised by the claim because this is the real meaning behind Bush's "unitary executive" theory. Bush has used this unitary executive argument to support his claims in many many signing statements that no part of the executive branch - and the Justice Department is part of the executive branch - will be used to force the executive branch to enforce the law. Why? Because the entire executive branch is one unit and it won't turn on itself. It will stay true to its singular executive head, the president.
President George W. Bush has broken down all but one avenue for Congressional oversight. He has virtually eliminated the Constitution of the United State with only one exception...
Impeachment

No Law

It seems that no little law is going to stop President Bush from doing whatever he wants to do with respect to torturing interrogatees:
"The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch."
At least now we know where the buck stops whenever we hear nightmare stories about US agents torturing prisoners.
Unitary executive branch? There's an interesting term to Google...
Update:
From Wikipedia quoting Supreme Court nominee Samuel Alito:
"The Constitution makes the president the head of the executive branch, but it does more than that.... The president has not just some executive powers, but the executive power—the whole thing." (The Wall Street Journal, 5 January 2006, p. 1.)
In other words, "Heil!"

Choir Boy

That's how Sam Alito was informally portrayed by Public Radio shortly after he finished his brief introductory statement today. Public Radio is covering the Senate committee hearings for Alito's Supreme Court approval. I was impressed that the concept of "unitary executive" was brought into the discussion even at this early stage.
I haven't really made up my mind about Alito. He seems boyish and naive, but that's becoming a mainstay for service to the Republican cause. He seems like a child of the 60s who "just said no" whenever asked if he would care to expand his mind. He preferred excelling in school rather than experiencing what it meant to be "a child of the 60s" - a Stepford boy born ten years after his time. But that's just the impression I get when I see him and the impression I got listening to him today.
I can associate with that. If I weren't dyslexic, I'd probably have taken the road more taken myself. But I don't know. I think I had a little more rebel in me than I see in Sam. But who knows...
Today's hearing was mainly consumed by political posturing by the committee members characterized by repeating political talking points. The Democrats expressed their desire that Alito should speak freely about who he is and what he believes while the Republicans assured Alito that they fully support him keeping his mouth shut as much as possible.
Contrast that to yesterday's Face the Nation on CBS when Arlen Specter (the chairman of this Senate committee) when asked about the possibility of a filibuster stated, "We really ought to go to these hearings... ..and give Sam--Judge Alito a chance to testify before making all these threats." I mean, do Republicans want Alito to testify or don't they? And is it honest to say you don't want to see Alito talk but Democrats don't have the right to filibuster if he doesn't talk? And really, what's wrong with this man discussing his professional opinion about abortion or the unitary executive theory that he promoted? Why would Republicans not want the public to know Alito's positions on these issues? What's wrong with understanding who this man really is and what he believes?
What's up?

Unitary Patriot

It seems that the compromises worked out by Congress in order to renew the Patriot Act weren't welcomed by President Bush so he excused himself from the requirements of the law in another of his "signing statements" which basically amount to a line-by-line item veto of any and every law ever written by Congress. After reading the signing statement myself, all I can think of is Bush telling Congress [go fuck yourself].
Senator Pat Leahy of Vermont responded:

''The president's signing statements are not the law, and Congress should not allow them to be the last word[...] The president's constitutional duty is to faithfully execute the laws as written by the Congress, not cherry-pick the laws he decides he wants to follow. It is our duty to ensure, by means of congressional oversight, that he does so."

Apparently the term "faithfully" means something quite different in the White House than it does to the rest of us.

''The signing statement makes clear that the president will faithfully execute the law in a manner that is consistent with the Constitution," said White House spokeswoman Dana Perino.

Or rather with the White House interpretation of the Constitution. Before the Republican Party neutered the nation's courts, it was the responsibility of the courts to determine what was and what was not constitutional. Now that power is in the hands of the "unitary executive branch" and the only power remaining for Congress is the power of impeachment. How long will it be before the Republican Congress gives that power to the White House as well?