Tuesday, January 17

QED, Senator

I came across a revealing quote in the New York Times over the weekend. At the close of the hearings, Senator Kennedy lamented his colleagues’ failure to land more than a glancing blow to Judge Alito’s confirmation chances:

“These issues are so sophisticated - half the Senate didn't know what the unitary presidency was, let alone the people of Boston," he said, referring to one of the legal theories that was a focus of the hearings. "I'm sure we could have done better." (emphasis added)

It might have helped his cause if Senator Kennedy didn’t keep mangling the name of the doctrine in question, the unitary executive theory. The unitary presidency issue was settled more than two centuries ago, when Benjamin Franklin's efforts to divide the presidency into a triumvirate were soundly rejected. Maybe someone should ask Senator Kennedy how many times he voted for president in 2004.

Congratulations, Senator, I think you made your point nicely.

For more on the unitary executive theory, I recommend the four part series of law review articles (three of which are available here) by Professors Christopher S. Yoo of Vanderbilt Law School and Steven G. Calabresi, of Northwestern University Law School.*

According to Yoo and Calabresi, the core tenets of any unitary executive theory are “the president’s power to remove subordinate policy-making officials at will, the president’s power to direct the manner in which subordinate officials exercise discretionary executive power, and the president’s power to veto or nullify such officials’ exercises of discretionary executive power.” (Source). Another common element of the theory, which is relevant to the current debate over the presidents Commander-in-Chief powers, is that the Vesting Clause of Article II is a direct grant of power to the president to wage war, with Congress's only limiting power being its ability to deny the president funding for the war effort (the "power of the purse"). This (crudely summarized) is the strong version of the theory.

The basic theory, however, is not about the scope of presidential power but rather about whether executive power should be concentrated in a single, elected and accountable figure rather than held by an alphabet soup of agencies that were not contemplated by the constitution and remain obscure to the average American. Unfortunately, this was beyond the Senate Judiciary Committee's grasp, despite Judge Alito attempts to explain it to them. For what it's worth, Judge Alito never endorsed anything beyond the weak version of the theory, which encapsulates the "core tenets" set out above. In his words:

When I talk about the unitary executive, I’m talking about the president’s control over the executive branch, no matter how big or how small, no matter how much power it has or how little power it has. To me, the issue of the scope of executive power is an entirely different question and it goes to what can you read into simply the term executive. That’s part of it. Of course, there are some other powers that are given to the president in Article II, commander in chief power, for example, and there can be a debate, of course, about the scope of that power, but that doesn’t have to do with the unitary executive.

* Confusingly, another high-profile proponent of the unitary executive theory is former Bush administration lawyer and now professor of law at Boalt Hall, University of California, Berkeley, John Yoo (whose book on presidential power I've only thumbed through, but look forward to reading). Compounding the confusion was Senator Biden's repeated reference to Prof. John Yoo as Prof. Ho (though I find it mildly disturbing that this error has been expunged from the online transcripts on the Washington Post's website. I heard the mistake clearly, twice. Senator Biden even corrected himself once.).

UPDATE: The "Yoo - Ho" confusion can be heard on C-Span's archived video of the morning of day four of the hearings. They occur at about 1:18:00 and 1:22:00 of the video.