Sunday, December 03, 2006

Unitary Executive Theory

It used to be that a king’s word was law.
In the New World the european immigrants threw off the colonial yoke of their oppressors in favor of rule by the people. The people would make the law and then the law would be king.
The experiment worked…for awhile…..............................
Until I heard Al Gore mention this stuff it did not click. I had heard George Bush Jr. made pronouncements when signing bills in to law. I had heard he made a pronouncement that “this is advisory(as opposed to binding)” when referring to the McCain torture amendment. Until Al Gore mentioned it the only place I had read about this was propaganda from lyndon larouche. The dude is a whacked out cult leader, which is precisely the reason he has the money and manpower to do some intense research. Although his shit is blatant manipulative appeals to gain himself more power, still some truth that was very little known sometimes gets through. Larouche’s explanation is as follows: Carl Schmitt was a jurist for the Weimar that provided the legal justification for the gradual expansion of executive power which transformed Weimar in to the third reich. The idea is that this ideology whether brought here by nazis under project paperclip or just through a transmission of ideas found its’ home in the United States. This legal ideology found its’ home in the Federalist Society. Now until I hear corroboration this stuff is off the wall. So I heard murmurs in the blogosphere and then…
What more mainstream corroboration can you get, but a pronouncement by Gore in his now famous speech about the “Unitary Executive Theory” that is being espoused by the Administration and Alito.
So what follows is a quick summary that will mostly be copy/pastings. My motivation for posting this blog is to see if anyone has some good research on this ideology(as well as whether or not this ideology finds its’ roots in the third reich). If you could share it I’d appreciate it much.
The long and the short of it: 1.At the least this theory means that the president can issue line-item vetoes as he sees fit during signing and exercise complete control over any and all agencies within the executive(he could control every aspect of the pentagon, CIA, homeland security, INS, IRS, GAO, etc.)
2.At the extreme this philosophy justifies the executive branch being the only entity entitled to enact judicial review on the executive.
Point number 1 makes the legislation subservient and point number 2 makes the judiciary subservient. If a group can start with point one and gradually institute point 2 then they can create a totalitarian state relatively quickly.
The following 2 quotes are taken from Wikipedia. THe first is Wikipedia’s description of the Bush administrations evidence of connections to this ideology. The second is a quote from Alito.
“This administration seems to interpret the theory more extreme than the previous ones. As for what specific constitutional limitations on the judicial power President Bush may have in mind, there is heavy speculation that it relates to Professor John Yoo’s position that the use of military force is, like presidential vetoes and pardons, an unreviewable matter.
President George W. Bush has applied the theory of the “unitary executive” in many of his decisions, most significantly in relation to its substantive element. Per the Presentment Clause, the President must sign any bill having passed Congress before that bill becomes law; the Bush Administration has often issued Signing statements to legisation signed by the President, detailing how the executive branch will construe the law.
For instance, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:
The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President’s constitutional authorities to conduct the Nation’s foreign affairs, participate in international negotiations, and supervise the unitary executive branch. In effect, Bush stated that when it comes to administering the executive branch, any Congressional requirements are merely advisory. It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases. Sceptics point out that he in effect uses them as line item veto although the Supreme Court already held the line item vetoes as unconstitutional in Clinton v. City of New York.
In another signing statement that has garnered controversy, President Bush wrote:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005. One of the signing statements which has attracted most controversy is the signing of the McCain Detainee Amendment, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody:
“The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.” Since, under the “Unitary Executive” theory, the Commander-in-Chief has broad authority to use his discretion in interpreting and applying the law, the President has with that statement reserved the right to waive the torture ban.
The most recent example, in which the premise that any law limiting the Presidents power is unconstitutional is advanced by the Bush administration and its supporters, is the FISA controversy. In the words of former Vice President Al Gore:
A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution – our system of checks and balances – was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: “The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.” An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution – an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[5] At present, the position taken by adherents of the “unitary executive” theory, and promoted by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers can not be restrained by any law, national or international.Opponents note that such a stance, resembling the Führerprinzip,is not unlike the one seen in police states. Supporters reply that it is exactly the same war power that Abraham Lincoln used to issue the Emancipation Proclamation in 1863, in the face of Copperheads who called him a dictator and sought his assassination.”
Samuel Alito quotes:
“I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents—or occasionally presidents—have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power. “The second question is: When you have the power that is within the prerogative of the executive, who controls the executive? “Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president” (all three made during confirmation hearings.
And the kicker…
“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,
Schumer’s questions
selected exceprts from King George
consortium news
another explanation
Selected facts/quotes
dah man KOS
Very good one, Very scary and contains info on federalist society links
References Carl Schimitt
Please tear me apart I just started learning about this 2 days ago. A whole pile of you assholes have to know WAYYY better so can you help me understand this?
I mean most United Statesians are under that impression “It can’t happen here”. I understand and accept that it can happen here, therefore we must remain ever vigilant.
But, wow….is this really the way liberty will finally be laid to rest in the United States?
Like this?
Why is Gore the only voice in the mainstream speaking this truth?
I gotta go lay down…wow…
The death of liberty will be televised.
Fascism will not come to the United States in jackboots, but instead in the form of a smiley face.

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