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Maybe if Biden read us...

Submitted by Simon on Mon, 12/22/2008 - 10:03pm

He wouldn't make gaffes like this (we were talking about the unitary executive and its misunderstanding by people on Biden's side of the aisle as recently as last week).

Well, in a sort of defense of Biden, could it be argued that he

was trying to make a valid point about the expansion of Executive wartime power, but got his Constitutional points twisted up somewhere?

The unitary executive is simply a recognition, from the first sentence of Article II, Section 1 of the Constitution, that the "executive Power shall be vested in a President of the United States of America." For the umpteenth time, it is not a theory that the president's power is somehow enhanced, at the expense of Congress, during wartime. It is merely a recognition that there is only one (i.e., uni-tary) executive and that any efforts by Congress to give executive authority to someone other than the President is unconstitutional. It is not a theory about the balance of power between the branches, but a statement about the authority of the president within the Executive Branch. The "notion" that a "unitary executive" means that "in time of war, essentially all power, goes to the executive," is indeed dead wrong. But it's Biden's misconception of that theory that is wrong, not Cheney's.

I think what a lot us took issue with over the last eight years were the numerous attempts by the Exceutive branch to regard legit Congressional actions as impositions on the Executive power (FISA, anti-torture measures, etc). I think certain people got things mixed up with regards to the theory that supposedly justifies this. They say the unitary executive theory, but they probably mean something else. Of course, BIden being a constitutional expert makes his gaffes that much more embarrassing...

Help me out here.

ADDED: Reading your earlier point again Simon, I think you pinpointed the issue Biden was trying to complain about ("the robust executive), but he hits the wrong target.

His claiming to be a

His claiming to be a constitutional expert, I think you mean. ;)

There are legitimate arguments to be made against the unitary executive - think of the Saturday Night Massacre, for example, where Nixon acted entirely within his powers to fire the prosecutor investigating his own administration. Should that have been intra vires? On the other hand, we can easily find counterexamples of absurdities from the non-unitary executive branches in the states. For example, National Pride at Work, et al. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008) is a doozy. The Governor of Michigan, in her official capacity, was sued over an amendment to the state constitution banning gay marriage; she opposed that amendment, so files, in her personal capacity, an amicus brief supporting the plaintiffs. The state AG is left defending the office of the governor from an attack that the governor has filed briefs in support of! I cannot understand how an independently-elected attorney general does not make an utter farce of the duty generally assigned to governors as it is to the President to ensure that the jurisdiction's laws are enforced.

It seems to me that even on a normative level, the arguments for a unitary executive by far outweigh the arguments against it. But as you note, usually when arguments are offered against it, they're attacking the wrong target. There are interesting arguments for and against the position that FISA encroaches on the President's inherent authority (I tend to think that it doesn't, for the record), but they revolve around Congressional power to bind the executive branch, not the authority of the person at the top of the executive branch to direct his subordinates within the bounds specified by law.

It seems to me that even on a

It seems to me that even on a normative level, the arguments for a unitary executive by far outweigh the arguments against it. But as you note, usually when arguments are offered against it, they're attacking the wrong target. There are interesting arguments for and against the position that FISA encroaches on the President's inherent authority (I tend to think that it doesn't, for the record), but they revolve around Congressional power to bind the executive branch, not the authority of the person at the top of the executive branch to direct his subordinates within the bounds specified by law.

Yeah, that's right.

His claiming to be a constitutional expert, I think you mean. ;)

Yeah, that's what I meant. :-)

The Gaffe-O-Matic is not

The Gaffe-O-Matic is not adjustable. It has only one setting.

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