techo-babble

As President Bush arrogated power to the executive
under the so called unitary executive theory some on the left
objected that the notion of unitary executive was radical and put the
President above the law. For example, Sidney Blumenthal recently
wrote, in an op-ed piece on salon.com criticizing Samuel Alito, that
“John Yoo, the former Justice Department official who wrote the
crucial memos justifying President Bush’s policies on torture . . .
at a public debate in December in Chicago, . . . espoused the radical
notion of the ‘unitary executive’ — the idea that the
president as commander in chief is the sole judge of the law, unbound
by hindrances such as the Geneva Conventions, and possesses inherent
authority to subordinate independent government agencies to his fiat.
This concept is the cornerstone of the Bush legal doctrine. Yoo’s
interlocutor, Douglass Cassel, professor at Notre Dame Law School,
pointed out that the theory of the ‘unitary executive’ posits the
president above the other branches of government: ‘Also no law by
Congress. That is what you wrote in the August 2002 memo’ (one of
Yoo’s memos justifying torture). ‘I think it depends on why the
president thinks he needs to do that,’ said Yoo.”¹
Unfortunately, the Bush administration is on firmer historical ground
than the left might like to admit.

There is a long history of increasing Executive
power. Starting with Lincoln during the Civil War. Then Wilson,
during WWI, expanded Executive power and set the foundation for the
administrative state. Franklin Roosevelt arrogated massive amounts of
power to the Executive during WWII. All of these power grabs were
justified by theories similar to what the current administration
calls the unitary executive theory.

FDR’s assumption of executive power was easily
just as massive as Bush’s. For example, when Europe slipped into
WWII , FDR, notwithstanding America’s declared neutrality and
without Congressional authorization or a declaration of war, deployed
the Army and Navy to lend aid to the Allies. He justified his actions
by reference to the president as commander in chief and by reference
to the old idea (first put forth by Lincoln) that the Constitution
implies the Executive the power to take whatever action is necessary
to deal with a crisis, ensure safety, or protect the nation.

Even more problematic for the liberal critique is
the fact that American courts have always looked to English Common
Law as a yard-stick, particularly for due process — proper
procedure. Generalizing the Common Law of medieval England (the
source of our notions of due process) one finds “that the king is
under the law, but that to the courts the ceiling of this law is so
lofty that the king can move about most comfortably and often soar to
dizzy and to us tyrannical heights.”²
Thus, a unitary executive need not place the Executive above the law
even while it allows significant Executive prerogative.

“There can be no question but that the radicals
of the late 18th century were desirous of maintaining the benefits
and rejecting what they regarded as the detriments of the common law.
The people were conceived to have succeeded to the royal prerogative
and where certain aspects of this prerogative underlay the
performance of some important social function, the extant or
pre-revolutionary delegation was not disturbed, or was adjusted to
meet the exigencies created by the general acceptance of the
separation of powers. Certain procedural forms that were in England
associated with [royal] prerogatives were still employed in America,
insofar as they were indispensable to the administration of the law,
and were justified in terms of the political theories which underlay
the new sovereignties. Some prerogative rights simply fell into
abeyance. Now the significant face of this is that there were a
variety of procedural powers and devices, all unquestionable part of
the English common law or equity systems, that were not employed here
after 1776, chiefly because they were associated with monarchical
government. Their future availability, since they are by every common
law test due process, rests actually upon a shift in emphasis in our
political thinking, a shift which every increase in central authority
and every diminution in local authority brings nearer. The further we
drift from the inhibitions of 18th century federal theory toward the
unitary [emphasis mine] ideas now current, the more likely is
the shift. It is more usual today to talk of public interest instead
of the people’s interest, and the public interest can with little
trouble become the State. There are already perceptible some signs of
this transition.”³

Goebel wrote his article in 1938, before FDR
presided over massive delegations of legislative power from Congress
to the Executive and assorted administrative agencies during WWII. It
would seem, then, the current administration’s assertion of
Executive prerogatives are not only in accord with the
Lincoln-Wilson-FDR line of developments but also accord with common
law notions of unitary executive power. Critics of this shift cannot
ague by reference to radical notions never before espoused. Rather
they should argue toward the founding era’s conception of
federalism. Though, given the growth of central government since FDR,
that argument may be long since lost.