The Unitary Executive – At the Zenith of His Powers

By Michael D. Peabody, Esq.

Immediately after the terrorist attacks of September 11, 2001, politicians rushed to their podiums to urge people to continue living their lives as normally as possible. If the way of life changed, politicians warned, the terrorists would have won. After the initial shock subsided, most Americans resumed their traveling, shopping, and recreation as they applauded the military response overseas.

Although people gradually stopped scanning the skies for low-flying aircraft, a panic-stricken administration decided, in the interest of national security, that the United States could no longer afford to protect certain Constitutional luxuries. Protection of due process rights, freedom from unreasonable search and seizure, and other liberties which may have seemed feasible in the bucolic wake of the American Revolution, could not survive the onslaught of global jihad.

The existing rules did not contemplate the existence of foreign terrorists operating within the United States to cause such excessive destruction. If the Executive Branch were to prevent future terrorist attacks, it had to find ways to do so that would not unnecessarily risk exposing its strategies in open court while also respecting Constitutional limitations. Since developing a solution that would protect national security as well as the Constitutional rights would take a long time, the administration unilaterally pursued a tactic of redefining its role in order to expand its powers while withdrawing Constitutional rights. Since the scope of the attempted expansion of executive power is unlimited, Constitutional freedoms are increasingly becoming products of executive beneficence rather than bedrocks upon which all can undeniably rely.

Soon after the attacks, the administration declared that parts of the Geneva Convention, which have protected generations of American soldiers, did not apply in the current conflict because Al Qaeda had not been a signatory to the treaty. Under this line of reasoning, the military secretly “rendered” Al Qaeda prisoners to nations that do not share Americans’ distaste for torture.

As American school children know, the founders discovered certain “inalienable rights” which were identified in the Declaration of Independence and enumerated, in part, in the Bill of Rights. As we approach the 230^th anniversary of the Declaration of Independence, however, the applicability of these rights is quickly disappearing under the emerging theory of the “unitary executive.”

The theory supposes that since the President has direct control over departments within the Executive Branch, Congress has little right to interfere with their actions. For instance, the Justice Department has said that the Environmental Protection Agency cannot sue to regulate the U.S. military since the executive branch would be the only party involved. In short, the unitary executive operates as one body and cannot act against itself.

Proponents of the “unitary executive” rest the theory on the Vesting Clause of Article II of the U.S. Constitution, which states, “The executive Power shall be vested in a President of the United States of America.” They then reference the Take Care clause which states “[The President] shall take care that the laws be faithfully executed.” They thus conclude that the Constitution creates a “hierarchical, unified executive department under the direct control of the President.”[i]

The term “unitary executive” first emerged at the Constitutional Convention where it described the concept of having a single President as opposed to a committee. Several of the framers expressed the concern that, in contrast with contemporary monarchs, executive power should be checked and restrained by the legislature and the judiciary.

Until recently, few presidents explored the contours of their executive authority. Abraham Lincoln recognized his limits in 1861 when he asked that Congress retroactively pass a law to authorize his executive suspension of the writ of habeus corpus, which had frozen due process rights for suspected Confederates.

During World War II, when Franklin D. Roosevelt ordered the internment of 120,000 men, women, and children of Japanese descent, his administration submitted to Judicial review in establishing the correctness of his decision. His action stood only because the Supreme Court approved the action, a decision that subsequent justices have regretted.[ii]

In 1970, one of Richard Nixon’s aides, Tom Charles Huston responding to countercultural groups in the United States, drafted a plan for wiretapping, burglary, and opening the mail of suspected domestic radicals. Although Nixon ratified the “Huston Plan,” he withdrew it under pressure. However, Nixon did attempt to use executive power sufficient to impede the investigations of campaign staffers who had approved the unlawful Watergate break-ins. Nixon resigned before his claimed extension of authority could be tested in court.

In 1978, Congress, concerned about the growing levels of executive surveillance and alleged abuses by the National Security Agency, passed the Foreign Intelligence Surveillance Act (FISA). FISA contained procedures for physical and electronic surveillance of American groups believed to be backed by a foreign government. It was later enhanced by the USA PATRIOT Act to include terrorist groups not specifically backed by foreign countries.

On September 11, 2001, the terrorist attack on the World Trade Center, which had been at least partially planned and organized within the United States, propelled the issue of domestic surveillance to the forefront, and along with it, the issue of the unitary executive.

In response to these attacks, John Yoo, now a constitutional law professor at the University of California, Berkeley, provided much of the framework for the modern theory of the unitary executive. During his work in the Justice Department’s Office of Legal Counsel from 2001 to 2003, Yoo wrote memos that supported the legality of torture, and narrowed definitions of the habeus corpus requirements. Yoo further stated that the President has the power to interpret international treaties, such as the Geneva Convention, and that such interpretation is “a key feature of the conduct of foreign affairs.”[iii] He further argued that only nations who were signatories to the Convention could be protected by its provisions.

The theory of the unitary executive is deeply imbedded in the administration’s current approach to the issue of terrorism. When a whistleblower told the New York Times about the existence of a wiretapping program directed at American citizens, the administration sidestepped the issue of the program’s legality under FISA or legal precedent, and instead condemned both the Times and the whistleblower for endangering national security. The administration argued that it could do whatever it wanted to do in order to ensure the safety of Americans, and was not beholden to any law on the topic.

Although the wiretapping began in earnest soon after the September 2001 attack, the administration denied it. In an April 2004 speech, President Bush said, “any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order.” Then, in December 2005, soon after warrantless wiretaps became public, Bush said that the program was “limited” to “taking known al-Qaeda numbers – numbers from known al-Qaeda people – and just trying to find out why the phone calls are being made.”

Although FISA has a provision allowing 72 hours of wiretapping before going to a secret court for a warrant, the administration did not operate under those guidelines. Instead, the administration authorized the NSA to examine huge numbers of phone calls and e-mails. In fact, so much information was surreptitiously obtained that, according to the New York Times, “FBI officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. . . . Some FBI officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans’ privacy.”[iv] Even FBI director, Robert S. Mueller III, asked whether the eavesdropping had an appropriate legal foundation, and ultimately deferred to the Justice Department’s position.[v]

In a 42-page legal analysis in defense of the wiretapping program dated January 19, 2006, the Justice Department stated that the USA PATRIOT Act and the congressional authorization to use force against the September 11, 2001 terrorists, “places the president at the zenith of his powers” and grants authority, not only internationally, but also domestically.

According to this memo, the Congressional authority is now vested in the President on issues of the war on terrorism, and that “the president has made clear that he will exercise authority available to him, consistent with the Constitution, to protect the people of the United States.”

The phrase “consistent with the Constitution” is troubling since the same memo argues that the president, whose is at his highest power, can override constitutional protections to execute the War on Terror. Since this war has no established tactical goal other than the eradication of global terrorism, it can be expected to last indefinitely, setting the standard, not only for the short term, but conceivably for the remainder of history. It will be difficult for the citizenry to reassert those rights which fall as casualties to the unitary executive.

The Founders forged this nation, not on the force of agreement or edict, but on a discovery – that all men are created equal and are endowed by their Creator with certain inalienable rights. These rights emerged, not from a king or prelate, but from a far greater power, far surpassing the highest reaches of any human authority.

James Madison had such a high regard for these rights that he viewed the very act of naming them as dangerous to nascent Constitutional freedoms. Madison, in fact, went on record in opposition to including the Bill of Rights in the Constitution because he feared that in the future, a governing element might legalistically limit the rights of its citizens to those listed, and deny the existence of rights that had been inadvertently overlooked or had not yet risen to prominence.

The concept of the unitary executive ignores the delicate framework of the Republican form of government in which free men and women are willing to cede a portion of their right to self-determination in exchange for a degree of safety, but are protected by a Legislature that passes laws based on the desire of the majority, an Executive that acts upon those laws, and a Judiciary which remains the guardian of the pre-existing natural rights.

In a speech honoring Martin Luther King, Jr. given on January 16, 2006, former Vice President Al Gore warned, “As the Executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.”

The transformation from a republic based on the concept of “inalienable rights” of the citizens to a nation that depends upon the unitary power of the Executive which has risen in response to terrorism, may not yet affect the everyday lives of most Americans. However, though life may appear the same on the surface, if left unchecked, the emerging dominance of one branch over the others will undermine the rights of citizenship.

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[i] Calabresi & Rhodes (1992). “The Structural Constitution: Unitary Executive, Plural Judiciary”. Harvard Law Review 105:1565.

 

[ii] It is of note that the Supreme Court has never overturned the expansion of governmental wartime powers established in Korematsu v. United States (1944). The internment cases have taken on added relevance in the context of the current War on Terror.

 

[iii] See Interview with John Yoo. http://www.press.uchicago.edu/Misc/Chicago/960315in.html

 

[iv] Lowell Bergman, “Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends,” New York Times, January 17, 2006.

 

[v] Ibid.