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Saturday, January 28, 2006

Dayton may be on show, Alito, Unitary Executive

--posted by Tony Garcia on 1/28/2006

We have invited Sen Dayton on to our show. His office said "they will try" and give us about 5-7 minutes.

We already know he is going to vote against Alito and asking him about that may give us little time to hear anything but talking points. But what would be more fascinating is asking him if the Republicans were wrong for confirming overwhelmingly Ruth Bader Ginsburg? How does he feel to be echoing talking points from Sen Durbin (IL) about Alito's threat to stare decisis (code word for the Democrats for Roe v Wade) when Durbin has already made it clear that there is not a Constitutional guarantee for abortion?

Though it is now a semi-dated list Real Clear Politics has a great breakdown of which Judiciary Committee Democrats can hold up to the standards that they are placing on Alito. The hypocrisy in the matter is staggering.

One of the complaints against Alito is that he supports a Unitary Executive which would lead to, according to Nazism's return. Those people actually have it wrong (big surprise). A Unitary Executive is not about making Congress into an advisory role. It is about an executive "in which all executive authority is centralized in the President.

What is "Unitary Executive"? Good question...and one the Democrats will not give an honest answer, if any answer, to.

There are three aspects of Unitary Executive Theory. (1) The president’s power to appoint and remove subordinate policy-making officials at will, (2) the president’s power to direct the manner in which subordinate officials exercise discretionary executive power, and (3) the president’s power to veto or nullify such officials’ exercises of discretionary executive power.

The third item is where the controversy sits. But if you think about it there should be very little controversy. It is basically saying that the President determines how the laws he must uphold are interpreted by the executive. After all, the person who executes the laws must have an interpretation and that interpretation, by virtue of the separation of powers, must be the executive's interpretation and NOT Congress'.

Alito was instrumental in the Reagan years in expanding this portion of the Unitary Executive. How? By expanding the use of presidential statements upon signing legislation. The logic is actually quite sound. The Constitution requires laws to be approved by Congress and the President. The Congressional Record is used in Courts (improperly, imho, but that is another topic) as proof of what Congress' interpretation of a law was. There was little that was offered to provide evidence of what the President's interpretation at the time of signing was. This was kind of lopsided. Presidential statements helped to provide that balance.

In that, it gave the Executive more power to enforce ITS interpretation.

Quite frankly, this is good. If Congress does not like this occurring they have two options. Get the law into court so that the Judiciary decides which interpretation is correct (not by creating a new law, please). The other option is pro-active...make better laws.

I wonder if Sen Dayton will use the phrase "Unitary Executive" and I bet he will end the call as soon as the false rhetoric that will come from his mouth gets corrected.

********** UPDATE **********
Welcome to the readers of Digital War Fighter. I noticed that DWF did not understand what I originally posted so I submitted a comment there to re-explain it. Here is that response:


I think you’re missing the point of the Unitary Executive that I was addressing. Two bodies sign off on a bill for it to become law. In the courts they (improperly) look at they do not look at the law by itself when making decisions. They look also to the Congressional Record to understand what Congress’ interpretation was. The same should be true of the Executive…what was that interpretation at the time of signing.

Additionally, do you seriously contend that the FBI should run to Congress to find out how to interpret new laws? Or that the IRS consult the Senate to understand new codes? Nope. They interpret those on their own and if there is disagreement it gets decided by the courts.

What you seem to imply is that the EPA should run to Congress to ask how a law is interpreted…which is, the way I see it, a violation of the seperation of powers."


Blogger tom said...

Some of my response at DW is snark, but I think the most interesting question is parenthetical - if Congress can override the president with a 2/3 vote, does the executive still have the right to a conflicting interpretation?

February 02, 2006  
Blogger Tony said...

I don't see why not. The Veto and the Veto-override are checks upon each other. That does not remove the Executive's right to have an interpretation...especially one heard in court later on.

February 03, 2006  
Blogger tom said...

Unless I'm mistaken you justified the executives right to interpretation by citing the president's authority to either sign or veto any particular bill. But it seems to me that if the constitution allows the legislative to override the president with 2/3 vote, under your reasoning then, at least in the cases when congress passed a bill with 2/3 or more, the executive's interpretation would be moot. Of course, as I said, no one can mindmeld with the writers of the law. But if a difference of interpretation comes up, I do not see why it should be a violation of the seperation of powers to privelege the intent of those who wrote the bill over those whose only job is to enforce it.

February 04, 2006  
Blogger Tony said...

Ah, Tony, his eyes open.

I understand what the connection is that you are making with the veto override. I had not considered that...

...upon further review the ruling on the field is overturned. I think that makes sense. If a President's veto is overriden the executive's interpretation is somewhat moot. There could be a reason to include the veto statement...perhaps the executive had Constitutional concerns, etc.

However, I see your point and it makes sense. I really cannot argue against it.

February 04, 2006  

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