The Attorney General and the Unitary Executive

The attorney general’s is a strange office. On the one hand, the AG is appointed by the president (with the advice and consent of the Senate, of course). On the other hand, the AG may be required to defy the president, investigate him, or even indict him for criminal acts. It is this duality of the AG role that has put President Bush and Attorney General Alberto Gonzales into hot water over the past four years. As attorney general, it was Gonzales’ job to investigate wrongdoing; however, as a loyal member of the Bush cadre, investigating the boss would have been a capital no-no. So how does the president get away with such obvious nepotism?

Unitary executive.

The phrase has been bandied about for eight years by liberals who have something of an understanding of what it means. “The president has total power” is what they think it means. And that’s the conclusion that the unitary executive theory results in, but it is not the premise.

The unitary executive begins with the president as the head of the executive branch of government. The executive branch encompasses the president, the vice-president (despite what the current vice-president says), the cabinet departments (like the Department of Homeland Security), and the various agencies within those departments (like the Transportation Safety Administration or Immigration and Customs Enforcement, to use the example of Homeland Security). There are also other myriad agencies like the Office of Management and Budget that live under what is called the Executive Office of the President. So far, so good. We’re not entering unknown waters. Of course this is the structure of the executive branch. It makes sense.

The theory of the unitary executive has always been with us, but it was taken to extremes by lawyers from the ultra-conservative Federalist Society. Some of America’s most conservative jurists, including Justice Antonin Scalia, Almost-Justice Robert Bork, and Chief Justice John Roberts, are or were members of the Federalist Society. This is the group responsible for the bogus interpretive theory called “originalism,” which holds that we can divine the intent of the Founding Fathers from the text of the Constitution, and oh, by the way, the Constitution never changes, except and exclusively through the amendment process. (Originalism’s counterpart is the living Constitution or active liberty, which says that the Constitution’s meanings must necessarily change as society changes, otherwise, the Constitution will find itself irrelevant and unenforceable.)

Under the unitary executive theory, the president has complete and total control over every office of the executive branch. The president should be free to fire whomever he wants, for any reason (or no reason at all), at any time. Furthermore, no executive agency should ever defy the president’s wishes, since all executive agencies are, reducto ad absurdum, the president. The president is the Justice Department. The president is the State Department. The president cannot be in conflict with himself; therefore, cabinet departments and agencies cannot be in conflict with the president’s wishes. This theory has been taken to court by the Justice Department, which held that the Environmental Protection Agency cannot sue the U.S. military, since the president would ultimately be the party on both sides, and the president certainly cannot sue himself!

The unitary executive then goes one step further: it declares that the president’s constitutional requirement to “take Care that the Laws [passed by Congress] be faithfully executed” means that the president’s powers cannot be constrained by Congress, since the president has a duty to execute the laws, and any Congressional hindrance of that duty, in the form of statutory limitations on the president’s power, is unconstitutional.

This is where President Bush’s signing statements come into play. Presidents have always issued signing statements, which are little interpretive blurbs written by the president when he signs a bill into law. The signing statements have, until now, been used to set down guidelines indicating how the president will enforce the particular law.

I say “until now” because Bush has used more signing statements than all other presidents combined, and he has used them most often to indicate that he will selectively ignore the parts of laws that restrict his power. Take this example from the Detainee Treatment Act, which Congress thought was going to be used to reign in Bush’s use of torture:

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.

In these signing statements, the president has reserved for himself the right to interpret what his constitutional powers are, and in so doing, reserved for himself the right to ignore provisions of laws passed by Congress that he feels are inconsistent with his interpretation of his own powers. This is the unitary executive theory in action (also inaction): whenever Congress attempts to place a check on the president’s power, the president sidesteps Congress, claiming that Congress cannot place any checks on the president’s constitutional duty to enforce the law.

I hope I don’t have to say that this is all highly questionable in terms of constitutionality. The president most certainly does not have the authority, constitutionally or otherwise, to interpret the law. That is the sole responsibility of the judicial branch of government. Chief Justice John Marshall, writing in Marbury v. Madison, put it simply and elegantly 205 years ago: “It is emphatically the province and duty of the judicial department to say what the law is.” No signing statement has ever been taken to federal court, but were that to happen, I can only hope that the court (which would be the D.C. Circuit Court) would refuse to grant the president judicial powers just like it refused to grant President Clinton legislative powers when he tried to use the line-item veto.

Back now to the attorney general. The next attorney general, who may very well be former Deputy Attorney General Eric Holder, knows what his role as AG would be. We know that he’s independent, meaning that, unlike Alberto Gonzales, he does not owe his entire career to the president. We know that he acknowledges that the AG is a unique office that, at times, requires “a closeness at the same time there needs to be distance.”

As Glenn Greenwald reports, though, Holder made some comments after the September 11, 2001 attacks that people who voted for Change should find disturbing. Of the inmates at the Guantanamo Bay prison, he said, “It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.” Even the U.S. Supreme Court eventually recognized that prisoners at Guantanamo Bay were entitled to Geneva Convention protections.

Is there no one out there who has a more progressive view of indefinite detentions? The Constitution is quite clear: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” And yet there are still people out there — lots of them, apparently, all in positions of power — who believe that there’s nothing wrong with a little indefinite detention among friends.

Is this the change we voted for?