Wednesday, January 18, 2006

Unitary Executive Theory Does Not Predict Future Rulings

Much of the Alito hearing questioning has centered on the constitutional debate over the extent of the president's executive power, specifically the unitary executive theory. From the Boston Globe:


Adherents of the theory say that the Constitution prevents Congress from passing a law restricting the president's power over executive branch operations. And, they say, any president who refuses to obey such a statute is not really breaking the law...

In a speech in November 2000 before the conservative Federalist Society, Alito said he believes that the Constitution gives the president "not just some executive power, but the executive power -- the whole thing."


Many worry that adhering to the unitary executive theory would make Alito an overzealous defender of the president's powers in wartime.

But Committee for Justice shows how adhering to the unitary executive theory does not necessarily predict that a judge will consistantly side with the administration, in a number of situations:


1. Executive Control over Inferior Officers. While Congress has substantial power over the appointment of executive officers, unitarians believe the Constitution’s silence about their removal means that the President can remove the ones who won’t follow his orders. Most adherents of the unitary executive, very likely including Judge Alito, therefore question the constitutionality of so-called independent agencies and the Office of the Independent Counsel. Here, however, the consensus ends.

2. Enemy Detention. In Hamdi v. Rumsfeld, Justice Scalia—one of the most prominent supporters of the unitary executive—announced his opposition to the indefinite detention of American “enemy combatants.” His argument is based on the Habeas Suspension Clause, which he reads, in light of originalist evidence and its placement in Article I, to give Congress alone power over detained persons' access to courts. Because the meaning of the Suspension Clause is clear to Justice Scalia, the teachings of unitary executive theory—that the executive gets leeway in hard cases―doesn’t come into play for him.

3. Search and Seizure. Nor need fans of the unitary executive support the NSA spying program. If you believe the Fourth Amendment applies to any surveillance of domestic residents, then both the President and Congress must adhere to its basic logic: that searches and seizures be reasonable and reviewable by courts. When a search implicates national security, a unitarian may think the executive deserves some deference when determining what’s reasonable. But he might also argue that an executive interpretation of the Fourth Amendment isn’t reasonable if the executive doesn’t supply an intelligible principle that limits executive discretion or that makes independent judicial oversight possible. Because the NSA program doesn’t meet that standard, it would fail—even giving all possible leeway to the executive.

4. Torture. Here, a unitarian might turn to the Define and Punish Clause, which says Congress has the power to define and punish offenses against the law of nations. It is now commonly believed that Congress’s control over such offenses reaches treatment of captured belligerents during hostile action. Just as Justice Scalia considers the Suspension Clause a bright-line carve-out from executive discretion, a unitarian might consider the Define and Punish Clause another “carve out.” Because Congress has primacy in this area, the executive wouldn’t be able to evade limits on interrogation methods enacted by Congress. Other provisions that apply to the President and Congress equally—including the Eighth Amendment and the Fifth Amendment's Due Process Clause―might also impose limits on executive interrogation methods.

5. Military Tribunals. A unitarian might give the executive some discretion to try belligerents captured outside of U.S. territory. But, again, some unitarians might consider the Define and Punish Clause a “carve out” that limits executive leeway to define the international laws triable in such commissions (or to set procedures that may affect the outcome such cases). Unitarian theory also doesn’t speak to the scope and content of the Confrontation Clause and Due Process Clauses. Indeed, those clauses (Define and Punish, Confrontation, and Due Process) underpin the arguments of Neal Katyal, the professor (and former Department of Justice official) challenging the military tribunals in Guantanamo. Katyal is a self-described believer in the unitary executive.

I don’t know what Alito’s views are on these questions. But the simple fact he believes in the unitary executive doesn’t tell us much.


I strongly believe that robust checks on executive power are needed, perhaps especially in wartime. But I suggest that looking at the man's record and the substance of his judicial reasoning is more useful than the specific legal theories he holds, assuming they are within the mainstream. The great jurist Oliver Wendell Holmes Jr, remember, simply held a moral relativism with the sole exception of government action that made him "puke". It was not his theory, but the substance of his decisions that made him great.

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