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Whither the unitary executive?

Submitted by Simon on Fri, 10/17/2008 - 1:00pm

It's a fair question that I've seen some Obama supporters asking: what of all these Republican enthusiasts for the unitary executive if Obama becomes President?

I suspect that those asking (or "crowing" as it used to be known) are using the term "unitary executive" inaccurately, thinking it refers to a general theory of a powerful Presidency. Not so. As I explained in this post from last year, the unitary executive doctrine is a theory of the intrabranch power of the Presidency - that is, the power of the President vis-a-vis other actors in the federal executive branch. What Obama supporters seem to have in mind when they ask if we'll still support "the unitary executive" if Obama wins is the motley raft of theories about the inherent, independent and importantly the interbranch powers of the executive branch; in the post just cited, I termed these collectively the "robust executive" theory.

I have doubts about the soundness of the robust executive concept, but I have no doubts at all about the (quite separate) unitary executive doctrine. It flows from, and in my view is a necessary consequence of, the Article II vesting clause (but see Martin Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996)), so my answer to Obama supporters who want to know if I still support the unitary executive doctrine if Obama is President is, quite obviously, yes. Article II says what it says, even if Obama is the President, just as it would if John McCain, Sarah Palin, Hillary Clinton, Dick Cheney or Newt Gingrich were the President. If Barack Obama wants to dismiss his US Attorneys because they don't share his law enforcement priorities, I for one will back his right to do so to the hilt. If Barack Obama wants to give direct orders to his solicitor general to take or change positions in a case (cf. The President's Brief), ditto.

Post facto:
Ten things that aren't changing (11/5/08)
Continuity of government (1/28/09)

Good points (although I do

Good points (although I do disagree with your take on the unitary executive, that's a discussion that doesnt lend itself to scattershot blog comments). One factual quibble, critics of Bush weren't arguing that he didn't have the right to fire US Attorneys who weren't following his law enforcement priorities, but rather his right to fire attorneys because they refused to ( in their minds, improperly) target democrats in certain investigations in order to influence elections. I'm not going to get into the merits of the debate, just trying to clarify what the charge was.

So he had the right to fire

So he had the right to fire the attorneys if they didn't follow his priorities, except if they didn't support his priorities?

I guess I can follow that if you're comparing it to, say, the obligation of a soldier to follow his commanding officer unless the CO is ordering him to do something that is clearly immoral or illegal. Is that the sort of thing you're getting at?

If so, then isn't it incumbent on the person who thinks they're given marching orders that aren't copacetic, to blow the whistle and explain the problem somehow, rather than just drag their heels and hope the whole thing blows over?

And could those attorneys really provide evidence that there was something improper about targeting Democrats (rather than, perhaps, candidates or elected officials in both parties) if potentially it was the Democratic candidates who really were committing illegal acts relating to the elections (in light of the current Acorn scam coming to light, is that so implausible?)

I'm honestly just asking- this has been my gut feeling about the whole "attorneygate" thing all along but I can't claim to have dug into the details of all of the allegations, so I'd like to hear your response.

CS

scary we had similar thoughts at the same moment, isn't it?

Right, but that is the

Right, but that is the tension with the "at-will" type concept for the US Attorneys. The allegations were that (at least) two of the US Attorneys were being pressured to pursue meritless investigations that were being used to damage Democrats in an election, which was followed up by allegations of the Justice Department using (illegal) litmus tests in hiring employees, and allegations that the US Attorneys were being subject to a somewhat crude loyalty test (not necessarily illegal, but troubling if true). We could argue all day about whether those allegations had any merit, should have been investigated, should have been ignored etc., but the point is that many believed in good faith there was real evidence that the allegations were true, and yes, some in bad faith just to stick it to Bush (again, I want to avoid the discussion as to whether there was enough evidence for an investigation, or whether Congress had the right at all). That is different than saying the President needs to explain all US Attorney firings, or that he generally doesn't have the right to fire US Attorneys for not doing there job the way he wanted.

The arguments against investigating generally broke down into two camps (i) there is not enough evidence of wrongdoing or illegal behavior to investigate, and the investigations seem to be turning into a witch-hunt and (ii) Congress has no or limited power to curtail the President's near absolute right to hire and fire the US attorneys (very oversimplified I know, but that I think is the basics of the arguments). Argument (ii) is the much more interesting argument to me, and it's one that I funamentally disagree with, although I do realize that there are a lot of nuances to the arguments and it isn't an "either/or" type of thing.

Scattershot??

Scattershot??.

Let's imagine the Democrats take control of government -all branches. Should the FBI and/or other reputable investigative sources come forward as early as January with evidence on everything from Mahoney to Fannie, what Democratic line will be drawn at the Department of Justice? What if the AG should dabble where Dems and the President don't want to go? What if his or her lawyers investigate issues potentially harmful to the President or his Party?

Yet the nation says accountability now. Since Iraq was not a failed war, the cries for that accountability have receded. Will a Democratic AG be free to "target" those responsible for government?s failure, abuses, corruption even if it means altering their chances in 2010? What if certain lines of investigation lead to the Executive?

Somehow I think the two charges above merge in practice if you reject the first charge. It is all about ?improper?, isn?t it? If any lawyer is fired for resisting "improper" pressure in curtailing investigations of Democratic targets (perhaps affiliated with the President), will Liberals rush forward to decry any subsequent Executive firing? Or will the appointees be forced to pass a better litmus test?

Democratic "groups" that can certainly "influence" elections (see this one) openly declared recently their intent to "target Centrists Democrats in 2010" in an effort to achieve "Party? conformity. Now I know this is a bit different that an AG's secret targeting, but would targeting such groups as ACORN themselves be improper? Of course there is also a fine line between charity groups and community groups. What if the AG tells lawyers targeting such groups IS improper?

Preferential treatment (priorities) in law enforcement can easily influence "elections" in many ways, but targeting the third Parties to politicians (ACORN as one example) is just as entangling as nailing a Congresscritter. Who was responsible for the meltdown, pork, influence peddling, partisan politics, corruption the country is angry about? Since I have no doubt Democrats and their proxies will figure in greatly to the full picture, we can only wonder what priorities and targets the new Democratic AG will have should Obama win.

I am not sure all isn't some form of targeting, or all some form of following law enforcement priorities such as enforcing immigration laws. The results of policy can effect elections as much as targeting AND indicting select opposition..

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