Tag Archives: Executive power

“Ad hoc legal approach”

I kind of hate the reporter in this video, and not only for her contemptuous style. But I’m choosing this video anyway to emphasize the implications of Obama’s speech and its similarities to the old regime.

So basically what you’re saying, Mr. President, is that your strategy for replacing Souter is to find someone who can convince Kennedy that Lincoln’s view of the executive power prevails. I mean, we’re assuming that the same folks who were against Bush’s executive branch will find some way to distinguish the facts for Obama. Just wanted to be clear, Mr. President. I don’t disagree with you at all. But when you change your positions so dramatically pre- and post-election it’s a bit confusing and seems a bit…dishonest.


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Unitary Executive

Yesterday at an AFF panel debating the future of Executive power under Obama Gene Healy noted that the phrase “unitary executive” is primarily associated with Bush 43, particularly w/ his “torture” policies.  Gene leaned loosely on the Federalist papers for the origin of the phrase, but later told me that the evolved phrase is synonymous simply with “strong.”

I have a hard time with this.  The point of a term of art is that a word or phrase keeps a consistent meaning so we can communicate effectively.  It’s cheating to cite to the Fed papers and at the same time claim that the meaning has evolved so that the original phrase is unrecognizable.   

The phrase was Hamilton encouraging the Framers to let one person be responsible for ultimate decisions.  Spooked by a tyrranous king, some founding fathers suggested hobbling the Exec w/ a co-presidency, or a joint branch like a mini-legislature.  Hamilton pointed out that if there’s no single person responsible for decision-making at the margins then no one will be accountable and we’ll all switch to passive voice as decisions simply…don’t get made.  If, for instance, a foreign army attacks the US and the structure of gov’t restrains the other branches from responding, Hamilton’s “unitary executive” recommendation provides that the one guy voted into this power would have to decide what to do.  He has counsel and advisors, of course, but ultimately one guy celebrates or takes the fall.  It’s a decision-making role.  Hamilton just pointed out that decision by committee doesn’t work, and it’s that kind of nontransparent lack of accountability that leads to tyranny.

Gene claims that the phrase has come to mean “powerful.”  The new unitary excecutive, then, is just powerful when compared with the other branches.  Singularly strong, if I understand it correctly.

I get that meanings evolve, but this has evolved in two ways that separate it completely from the original meaning.  First, we’re looking at a shift in the meaning’s scope.  Where Hamilton’s meaning was intra-branch, this proposed evolution spans the entire government.  The Executive has always been the only branch permitted to “act” (whereas loosely the Legislature funds and the Judicial branch provides the king’s thumbs-up or -down at the margins).  So Hamilton was just saying: If two people at once are equally charged with “action” then we will never know who’s doing what.  

This new meaning implies that the Executive subsumes powers from the entire government like some sort of vortex.  This latter “unitary” implies that the government is just converging in one spot.  Which makes sense, except that Gene admits that Bush’s presidency was a kind of 2+man show.  So the original meaning must have ceased to exist and been replaced whole cloth by this evolution; Bush’s unitary presidency wasn’t “unitary” at all.

What’s more is that spurring the torture talks was among the least unitary things Bush did, and among the most unitary parts of Obama’s first 100 days.  Bush was like a many-headed beast in that respect, so the only people accountable for drawing the line between what is and is not torture were the lawyers named on the memos.  

Meanwhile Obama has made himself singularly responsible in that department.  Though he now claims he has no intention of indicting the memo writers, legal action murmurs persist from the White House.  Bush delegated to the point that his lack of accountable decision making became a fault.   Obama on the other hand has thoroughly disincentivized an active cabinet and a forthcoming Justice Dept.  With two branches now completely aligned the only check on Obama’s singular power is the slow arm of the Supreme Court.  

Our founding fathers envisioned a government with some power overlap in the Venn diagram of gov’t.  The President should be able to act, decisively, and the Legislature may choose not to fund his choice.  In that case the President directs the immediate response to a crisis, but the sustained reaction falls out of unitary hands.  The Legislature decides what prolonged course of action the gov’t will take.  And, ultimately, if everyone is outside the lines then the Court remands the whole thing back w/ a directive against a given avenue.  

Part of the point of having a strong one-accountable-guy Executive model is the added benefit of forging a kind of ambition cantilever.  The President’s ability to act quickly when necessary is among his only major check on other branches that survives the periods when the Exec/Leg branches are aligned.  For instance right now the veto is a pretty impotent tool when everyone kowtows to this particularly messianic — ahem, unitary — leader.  But the power to act retains its strength if, say, a company needs nationalizing and no one else is poised (or morally inclined) to seize.*

So is it possible for a phrase to change and absolutely replace its previous meaning?  It happened to “due process,” I suppose.  I just say: If your meaning is the exact opposite of the original meaning, then don’t cite the original sources.  The difference is primarily in scope, but the differences at the two iterations’ cores are so fundamental that it’s effectively a totally new phrase.  

On a broader scale I get frustrated when we don’t define the words we’re using.  Democracy?  What does that mean?  “Democracy” in Iraq is different from sought “democracy” in Cuba, which is different still from what we have here (in fact a REPUBLIC, but dem w/ a big “D”).  Clearly meaning is all context, but the semantic drift phenomenon makes conversations more complicated than we admit.  I love language and love how it evolves, but just cite to the relevant source.  Only if we keep track of the context can we keep track of words’ definitions.  Only then can we even start to discuss a viable recommendation moving forward.  


*I’m a nerd, I know, but are we basically making an argument here that GM is blighted?  Is this tacit nationalization really just eminent domain by another name?

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Taming the Prince

I don’t necessarily agree with the below, but something to mull:

Lifted directly from The Daily Dish, on executive power and torture:

Taming The Prince, Ctd.

A reader writes:

One small point that I think is worth noting, and that I think can be used against some of the conservative defenders of both unlimited executive power and torture, is the following. Isn’t it the case that, say, Locke’s understanding of prerogative is such that by definition we cannot restrict its use ahead of time, but that after the fact there will be a judgment of sorts, a post-hoc reckoning with what happened?

I fully admit that in Locke — and, I would argue, The Federalist and Lincoln — there’s a fairly robust notion that action sometimes will need to be taken with great dispatch, or where the law is silent, or even, at times, against the law. Because such situations will not be regular or normal, they necessarily fall within the realm of prudence and prerogative. They are exceptions to the rule and thus, in a way, extra-legal. Locke writes that such actions can be undertaken for “the common good;” Lincoln believes they can be undertaken to defend the Constitution itself (violating some facet of the Constitution to preserve the continued use of the document itself).

But all these theories include the idea that because such actions cannot really be limited beforehand, they can be judged, and punished, afterwards (thus Locke’s famous “appeal to the heavens”). And isn’t that what we are doing now?

We are sorting out what happened, seeing what information was gained by the use of torture (or techniques close to it), and ultimately determining to what extent, if any, it was “worth it.” The admission that prerogative power can be quite expansive, almost unlimited, prospectively means nothing in excusing the use of such power retrospectively. According to the conservative political theorists who reminded us of the nature of executive power, we are doing precisely what their own theories said we could and must do! My suspicion is that after they lose the arguments about the more technical legal aspects of torture, which your own work has done so much to expose, they will move on to more broad, theoretical arguments about prudence, prerogative, and the executive branch. They should lose that argument too.

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Because why not disincentivize cabinet members from providing thorough legal advice?


President Obama raises the possibility of prosecuting Bush administration lawyers who approved so-called enhanced interrogation techniques on terror suspects.

Link: Because it would be more efficient if one guy could just rule by uninformed edict…

WASHINGTON — President Barack Obama raised the possibility of prosecuting Bush administration lawyers who approved so-called enhanced interrogation techniques on terror suspects.

Mr. Obama, speaking to reporters Tuesday in the Oval Office, also laid out the parameters for a bipartisan commission to examine government tactics used in the wake of the Sept. 11, 2001, terrorist attacks, although he was careful to say he wasn’t endorsing such a panel.

Qualified immunity/political question would probably take care of this. Obvi Obama knows con law better than I do. But here’s the thing: If Obama seeks “legal action” in this case it’ll effectively disincentivize an active cabinet. It would be the definitive Hamiltonian executive, with only one messiah-like dude reining supreme. This does come from 78 (and…84, I think?), but it’s the unitary part he’s obviously focusing on, not the “energetic.”

I agree that the executive power should rest in one person. But the point of this unitary element is that the President should be able to act quickly. This requires thorough education of what avenues are available to him — and avenues that are not. By raising this hue and cry against the lawyers who attempted to educate Obama’s predecessor he’s instilling some fear in government lawyers to find the line between legal and illegal — which we all know is a different line from the moral/immoral distinction.

However we feel morally about torture, don’t w want a government that goes to the edge of what is available to it to protect its citizens? I’m not necessarily expressing an opinion on torture, but aren’t there a lot of people who wish there were no wars? Would we want a government that didn’t engage in war when necessary to protect its citizens? If you admit that there are instances when a government must do things it would not ordinarily want to do, in order to protect its constituency, then you have to agree there is some legal line. We will all — citizens, aliens, and terrorists alike — be better off if the President and all associated with his branch are clear and educated as to where that line falls.

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Krauthammer: McCain for President

McCain for President

By Charles Krauthammer
Friday, October 24, 2008; A19

Contrarian that I am, I’m voting for John McCain. I’m not talking about bucking the polls or the media consensus that it’s over before it’s over. I’m talking about bucking the rush of wet-fingered conservatives leaping to Barack Obama before they’re left out in the cold without a single state dinner for the next four years.

I stand athwart the rush of conservative ship-jumpers of every stripe — neo (Ken Adelman), moderate (Colin Powell), genetic/ironic (Christopher Buckley) and socialist/atheist (Christopher Hitchens) — yelling “Stop!” I shall have no part of this motley crew. I will go down with the McCain ship. I’d rather lose an election than lose my bearings.

First, I’ll have no truck with the phony case ginned up to rationalize voting for the most liberal and inexperienced presidential nominee in living memory. The “erratic” temperament issue, for example. As if McCain’s risky and unsuccessful but in no way irrational attempt to tactically maneuver his way through the economic tsunami that came crashing down a month ago renders unfit for office a man who demonstrated the most admirable equanimity and courage in the face of unimaginable pressures as a prisoner of war, and who later steadily navigated innumerable challenges and setbacks, not the least of which was the collapse of his campaign just a year ago.

McCain the “erratic” is a cheap Obama talking point. The 40-year record testifies to McCain the stalwart.

Nor will I countenance the “dirty campaign” pretense. The double standard here is stunning. Obama ran a scurrilous Spanish-language ad falsely associating McCain with anti-Hispanic slurs. Another ad falsely claimed that McCain supports “cutting Social Security benefits in half.” And for months Democrats insisted that McCain sought 100 years of war in Iraq.

McCain’s critics are offended that he raised the issue of William Ayers. What’s astonishing is that Obama was himself not offended by William Ayers.

Moreover, the most remarkable of all tactical choices of this election season is the attack that never was. Out of extreme (and unnecessary) conscientiousness, McCain refused to raise the legitimate issue of Obama’s most egregious association — with the race-baiting Rev. Jeremiah Wright. Dirty campaigning, indeed.

The case for McCain is straightforward. The financial crisis has made us forget, or just blindly deny, how dangerous the world out there is. We have a generations-long struggle with Islamic jihadism. An apocalyptic soon-to-be-nuclear Iran. A nuclear-armed Pakistan in danger of fragmentation. A rising Russia pushing the limits of revanchism. Plus the sure-to-come Falklands-like surprise popping out of nowhere.

Who do you want answering that phone at 3 a.m.? A man who’s been cramming on these issues for the past year, who’s never had to make an executive decision affecting so much as a city, let alone the world? A foreign policy novice instinctively inclined to the flabbiest, most vaporous multilateralism (e.g., the Berlin Wall came down because of “a world that stands as one”), and who refers to the most deliberate act of war since Pearl Harbor as “the tragedy of 9/11,” a term more appropriate for a bus accident?

Or do you want a man who is the most prepared, most knowledgeable, most serious foreign policy thinker in the United States Senate? A man who not only has the best instincts but has the honor and the courage to, yes, put country first, as when he carried the lonely fight for the surge that turned Iraq from catastrophic defeat into achievable strategic victory?

There’s just no comparison. Obama’s own running mate warned this week that Obama’s youth and inexperience will invite a crisis — indeed a crisis “generated” precisely to test him. Can you be serious about national security and vote on Nov. 4 to invite that test?

And how will he pass it? Well, how has he fared on the only two significant foreign policy tests he has faced since he’s been in the Senate? The first was the surge. Obama failed spectacularly. He not only opposed it. He tried to denigrate it, stop it and, finally, deny its success.

The second test was Georgia, to which Obama responded instinctively with evenhanded moral equivalence, urging restraint on both sides. McCain did not have to consult his advisers to instantly identify the aggressor.

Today’s economic crisis, like every other in our history, will in time pass. But the barbarians will still be at the gates. Whom do you want on the parapet? I’m for the guy who can tell the lion from the lamb.


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