In signing the Defense Appropriations bill that contained the McCain antitorture amendment, the president proclaimed that “The executive branch shall construe … [the section 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 …”
The only power that statement seemed to acknowledge as legitimately limited is the judicial power. Does that mean, since administration lawyers have argued in the past that the president’s “plenary power” in an emergency includes the right to ignore treaties and acts of Congress, that the president will do whatever he pleases and the judiciary branch can go whistle, as some have suggested? Maybe not, but it’s worth worrying about.
“Unitary executive power” has two meanings, one rather commonplace and the other more controversial and unsettled. The first is that since the Constitution gives the president the power to see that the laws are faithfully executed, he has the power to supervise the entire executive branch, including hiring and firing and setting policy, in a centralized, “unitary” manner. This power is limited by the Civil Service Act and there’s some question as to whether it applies to “independent” regulatory agencies, but those are details.
The second meaning, regarding the scope of unitary presidential authority, is more controversial. Does a congressional authorization to use force (since we apparently don’t believe in Congress declaring war anymore) expand power to, for example, order surveillance of Americans – even though Congress in 1978 set up a Foreign Intelligence Surveillance Court to supervise such surveillance – in a way that bypasses that court? If the president’s “unitary executive” power allows him to enforce policy on the entire executive branch, perhaps it does.
This is made more complicated by the modern practice of presidents attaching signing statements to legislation, a practice Judge Alito, when serving in the Office of Legal Counsel during the Reagan administration, pioneered. President Bush has issued more signing statements (about 500) than any previous president, and about 100 have included the term “unitary executive” in a way that tends to strengthen executive power. The idea behind signing statements was to give the courts information beyond the legislative history to guide them when interpreting laws, but the courts have paid attention to them only sporadically.
Maybe it isn’t quite time to worry about President Bush destroying the separation of powers and ruling as a monarch or dictator. But these and other signs show a persistent impulse to beef up executive-branch power at the expense of the legislative and judicial branches. The “unitarians” bear watching.