User:Nescio/Workplace

The Jefferson administration

On his Inauguration Day in 1801, Thomas Jefferson selectively voided 25 of the 42 judicial commissions approved by the Senate, that were nominated by the previous Adams Administration. This resulted in the landmark Supreme Court opinion Marbury v. Madison.

The Jackson administration

In 1831 Andrew Jackson refused to recognize a decision by the United States Supreme Court that exempted the Cherokee nation from Georgia state law and recognized that they had a right to self-government. The Judicial branch was powerless to force Jackson to enforce their opinion.

The Lincoln administration

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads" (those in the Union who supported the Confederate cause). However, he also wrote to Congress soon afterward asking them to retroactively pass a law authorizing his actions, implicitly recognizing that only it could legally suspend the writ of habeas corpus.

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan that the suspension had been unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed.

Andrew Johnson Impeachment

President Andrew Johnson was impeached by the House of Representatives on the grounds that he had replaced a member of his cabinet, in contradiction to a law Congress had passed expressly to prevent him from doing so called the Tenure of Office Act. After impeachment, a trial was held in the US Senate in accordance with the US Constitution, but none of the articles of impeachment won the required vote and Andrew Johnson remained in office. This situation appears to be relevant to the Unitary Theory, since the outcome of the controversy was that Johnson was not removed from office by Congress for firing cabinet members in a manner that was contrary to the will of Congress.

The Theodore Roosevelt administration

Roosevelt believed that extended presidential powers allowed him to best serve his country with quick, vigorous decisions, although he also explicitly recognized his obligation as president to submit to the legislature. He wrote in his Autobiography:

I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. (198)

The Franklin D. Roosevelt administration

Later President Franklin D. Roosevelt ordered the internment of 120,000 individuals of Japanese descent. However, his administration submitted to the authority of the judicial process in reviewing this action. The action was eventually allowed to stand because it was approved by the Supreme Court, although the Court and legal scholars since then have often criticized the correctness of that decision.

The Truman administration

President Harry Truman sought to take over the United States steel industry, in an attempt to prevent a labor dispute, during the Korean War with Executive Order 10340.

Owners of the steel mills sued the Federal Government, claiming the Federal takeover of the steel mills was unlawful. The Supreme Court agreed, finding Truman's executive order seizing the steel mills to be contrary to statute and the Constitution, in the case of Youngstown Sheet & Tube Co. v. Sawyer, decided in 1952.

Justice Jackson wrote the most famous opinion in this case, delimiting three spheres of power in which the President and Congress could act. He found that the power of the President is at its apex when acting in accord with the express or implied will of Congress; the power of the President is lessened when acting without the express authorization of Congress; and the power of the President is at its lowest ebb, when acting contrary to the express or implicit will of Congress. He further found that the Congress had failed to authorize seizure of private industry during a national crisis, even though it was brought to their attention; therefore, any Presidential claim to be authorized to do so was highly questionable, as the President acted contrary to the implicit will of Congress.

The decision has had a broad impact, since it represented a check on the broadest claims of executive power at the time. It also represented the Court's assertion of its own role in arbitrating matters that it might previously have considered political, and therefore potentially unjusticiable; the Court entered into these matters further in Baker v. Carr and Powell v. McCormack.

The Court also applied the Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action in invalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, while citing it more generally in support of its decision to permit litigation against the President to proceed in Clinton v. Jones.

The Nixon administration

In 1970, White House Aide Tom Charles Huston drafted a domestic intelligence strategy that included elements such as domestic burglary, illegal wiretaps, and the opening of mail of alleged domestic radicals. President Nixon originally ratified the "Huston Plan" despite its facial illegality, then withdrew his ratification under pressure from FBI director J. Edgar Hoover and Attorney General John Mitchell. During the later investigation of this plan by the Church Committee, Nixon justified his approval of the Huston Plan as follows:

"It is quite obvious that there are certain inherently governmental actions which if undertaken by the sovereign...are lawful but which if undertaken by private persons are not.... But it is naive to attempt to characterize activities a President might authorize as 'legal' or 'illegal' without reference to the circumstances under which he concludes that the activity is necessary."

(Answer of Richard M. Nixon to Senate Select Committee Interrogatory 34, 3/9/76, pp. 16-17, quoted in Church Committee Final Report Book 2)

In 1971, Nixon tried to enjoin the publication of the Pentagon Papers by applying for an injunction in the courts and accepted the Supreme Court's decision permitting publication of the papers.

However, in response to the leak of the Pentagon Papers, Nixon then formed a special White House unit known as "the Plumbers". Officers of the administration of Richard M. Nixon, including at least John Mitchell and members of Nixon's campaign staff approved unlawful break-ins committed by the Plumbers. President Nixon then used his executive powers to impede the resulting investigation. The Church Committee investigated other executive misconduct, including wiretaps against those who opposed the Vietnam War. Ultimately, Nixon avoided impeachment proceedings by resigning. For more information, refer to the Watergate scandal.

In response to Operation Shamrock, Operation Minaret, and the transgressions by the Nixon administration, which all involved abuses by the NSA, the 1978 Foreign Intelligence Surveillance Act was adopted.

The Clinton Administration

Bill Clinton objected to provisions in a bill establishing a semi-autonomous National Nuclear Security Administration, which set out the reasons for removing the director. Clinton objected that such a measure would impinge on his presidential prerogatives (specifically the alleged Presidential powers to interpret and execute measures under the US Constitution, even contrary to the will of Congress, or in the absence of court order.)

The George W. Bush administration

The Bush administration has interpreted the theory more expansively than previous administrations. As for what specific constitutional limitations on the judicial power President George W. Bush may have in mind, the argument used by the President and his supporters is widely regarded as consistent with legal positions promulgated by John Yoo, particularly as recorded in several of his legal memoranda while working at the Department of Justice's Office of Legal Counsel under Bush. Yoo's positions include that the use of military force is, like presidential vetoes and pardons, an unreviewable matter. Yoo's opinions are widely seen by legal scholars as controversial and contrary to most scholars' understanding of the Constitution. Rejecting the applicability of the arguments previously stated in support of such views, many argue that these views seem to have little basis in either the text or the history of constitutional law and this is seen by many to lend further credence to the skepticism regarding the validity of the arguments; indeed, Glenn Greenwald argues that Mr. Yoo's arguments echo what could be called "An Ideology of Lawlessness"^[59]

The Yoo position is supported by David Addington, former counsel and current chief of staff to the Vice President, who advocates a new paradigm, involving extreme flexibility of Presidential power.^[60]

President Bush has applied the theory of the "unitary executive" in a wide range of substantive issues, often issuing signing statements detailing how the executive branch will construe legislation. President Bush issued at least 132 signing statements from 2001 to July of 2006, less than either Bill Clinton and George H.W. Bush.

Of the 132 signing statements by President Bush, 110 of them have addressed specific constitutional issues, typically regarding attempts by Congress to infringe upon Constitutional powers specifically delegated to the Executive Branch. For example, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:

The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.

In effect, Bush stated that when it comes to several areas of foreign policy, the provisions discussed in his signing statement are merely advisory. It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases. Indeed, it can be argued that he is stating ahead of time the position he will also later defend in court, and that this does not imply rejection of subsequent court decisions, but a pre-statement to the courts. Skeptics point out that he in effect uses them as line-item veto although the Supreme Court already held the line item veto as unconstitutional in Clinton v. City of New York.

Another signing statement that has garnered controversy is the signing of the McCain Detainee Amendment, prohibiting cruel, inhumane and degrading treatment of detainees in U.S. custody. President Bush wrote in part:

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.

Some analysts contend the President has, with that statement, reserved the right to waive the act. It might be interpreted as a position he is prepared to argue in court when such a subject might be adjudicated.

The NSA warrantless domestic surveillance program is another example of the Bush administration's application of its interpretation of executive power, which has led to much criticism. For example former Vice President Al Gore stated the following:

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Under the Bush administration, the United States Department of Justice has ruled that the Environmental Protection Agency may assess administrative penalties against federal agencies (e.g. the Department of Defense) pursuant to Congressional authorization, notwithstanding the unitary executive theory.

Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international. Others note that the view Yoo advocates, closely resembles the Führerprinzip, and is similar to the one seen in police states. Still others point to Jefferson's warning that the Tenth Amendment was needed to keep the Federal branches from monopolizing adjudication of rights, a danger further specified today by alleged attempts by the legislative and especially judicial branches to claim such a monopoly in a way that overwhelms the legitimate prerogatives of the states and of the federal executive branch. Supporters contend that the constitutional war powers they assert are exactly the same war powers that Abraham Lincoln used to issue the Emancipation Proclamation in 1863 in the face of Copperheads, and that cases like Ex Parte Milligan should be distinguished from subsequent Supreme Court cases such as Ex Parte Quirin to which the administration refers as basis for the application of enemy combatant status. This position ignores the fact that in Milligan, the Supreme Court explicitly ruled that the Presidential claim of exceptional war powers was unconstitutional, whereas Quirin does not involve special war powers but merely discusses habeas corpus based on enemy combatant status.

In addition to that, the validity of Quirin as a basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions has been disputed.^[61][62][63] A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.^[64]

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of U.S. municipal law, in accordance with Article 6, paragraph 2, of the Constitution of the United States.^[65] The cases which are currently making their way through the U.S. judicial system should clarify the U.S. administration's domestic legal position and its international treaty obligations.^[66]

Legal experts Scott Horton, David Abraham, Ahmad Chehab, Arthur Versluis suggested that the concept of the "unitary executive," as interpreted by the Bush administration, appears to be based upon Carl Schmitt's state of exception.^[67][68]

Application by the George W. Bush administration

In the War on Terrorism President George W. Bush has invoked his war powers to justify several controversial actions, such as the NSA electronic surveillance program, and enhanced interrogation techniques. The administration, on several occasions, has promoted a concept, referred to as the unitary executive theory, to argue that in his duty as Commander-in-Chief, the President, with his inherent powers, cannot be bound by any law or Congress. Advocates of this theory opine that since the primary task of the President, during a time of war, is protecting US citizens, anything hindering him in that capacity can be considered unconstitutional. This argument is widely regarded as consistent with legal positions promulgated by John Yoo, particularly as recorded in several of his legal memoranda while working at the Department of Justice's Office of Legal Counsel under Bush regarding enhanced interrogation techniques, the unlawful enemy combatant status and the NSA warrantless domestic surveillance program.^[69]

Yoo's positions include the view that the use of military force is, like presidential vetoes and pardons, an unreviewable matter.^[69] His opinions are considered controversial by legal scholars and contrary to their understanding of the Constitution.^[69] because the theory appears to hold that the President's war powers place him above any law.^{[69][70][71][72][73]}

President Bush has applied the theory of the "unitary executive" in a wide range of controversial issues, often issuing signing statements detailing how the executive branch will construe legislation.^[69] Skeptics point out that he in effect uses such signing statements as line-item veto,^[74] although the Supreme Court already held the line item veto as unconstitutional in "Clinton v. City of New York".^[74]

In the NSA warrantless surveillance controversy this theory was used to suggest the President was not required to abide by the Foreign Intelligence Surveillance Act (FISA).^[75] In response former Vice President Al Gore stated the following:

"A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.""

"An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."^[76]

The same rationale was used to deny detainees in the War on Terror protection by the Geneva Conventions resulting in a global controversy surrounding apparent mistreatment. Also Elizabeth Holtzman and Charlie Savage contend that the Detainee Treatment Act of 2005, which was adopted to address prisoner abuse, might be ignored after President Bush added a signing statement, invoking his rights as Commander-in-Chief, to that bill.^[77] President Bush wrote in part:

"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."^[78]

Elizabeth Holtzman and Charlie Savage contend the President has, with that statement, reserved the right to waive the act.^[77]

Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international.^[69] Others note that the view Yoo advocates, closely resembles the Führerprinzip,^[79] and is similar to the one seen in police states.^[80]

Legal experts Scott Horton, David Abraham, Ahmad Chehab, Arthur Versluis suggested that the concept of the "unitary executive," as interpreted by the Bush administration, appears to be based upon Carl Schmitt's state of exception.^[67][68]

Rejecting the applicability of the arguments previously stated in support of such views, many argue that these views seem to have little basis in either the text or the history of constitutional law and this is seen by many to lend further credence to the skepticism regarding the validity of the arguments.[69]

The Yoo position is supported by David Addington, former counsel and current chief of staff to the Vice President, who advocated a new paradigm, involving extreme flexibility of Presidential power.^{[citation needed]}

President Bush has applied the theory of the "unitary executive" in a wide range of controversial issues, often issuing signing statements detailing how the executive branch will construe legislation. President Bush issued at least 132 signing statements from 2001 to July of 2006.^[69][81] Of the 132 signing statements by President Bush, 110 of them have addressed specific constitutional issues, allegedly regarding attempts by Congress to infringe upon Constitutional powers specifically delegated to the Executive Branch. However, by the end of his term, George W. Bush will have issued more signing statements than all other Presidents combined.^{[citation needed]}

For example, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:

"The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch."^[82]

In effect, Bush stated that when it comes to several areas of foreign policy, the provisions discussed in his signing statement are merely advisory.^{[citation needed]} It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases.^{[citation needed]} Indeed, it can be argued that he is stating ahead of time the position he will also later defend in court, and that this does not imply rejection of subsequent court decisions but a pre-statement to the courts.^{[citation needed]} Skeptics point out that he in effect uses them as line-item veto,^[74] although the Supreme Court already held the line item veto as unconstitutional in "Clinton v. City of New York".^[74]

Another signing statement that has garnered controversy is the signing of the Detainee Treatment Act, prohibiting cruel, inhumane and degrading treatment of detainees in U.S. custody. President Bush wrote in part:

"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."^[83]

Some analysts contend the President has, with that statement, reserved the right to waive the act. It might be interpreted as a position he is prepared to argue in court when such a subject might be adjudicated.^{[citation needed]}

The NSA warrantless domestic surveillance program is another example of the Bush administration's application of its interpretation of executive power, which has led to much criticism.^[84] For example former Vice President Al Gore stated the following:

"A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.""

"An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."^[85]

Under the Bush administration, the United States Department of Justice has ruled that the Environmental Protection Agency may assess administrative penalties against federal agencies (e.g. the Department of Defense) pursuant to Congressional authorization, notwithstanding the unitary executive theory.^[86]

Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international. Others note that the view Yoo advocates, closely resembles the Führerprinzip,^[87] and is similar to the one seen in police states.^[88] Still others point to Jefferson's warning that the Tenth Amendment was needed to keep the Federal branches from monopolizing adjudication of rights, a danger further specified today by alleged attempts by the legislative and especially judicial branches to claim such a monopoly in a way that overwhelms the legitimate prerogatives of the states and of the federal executive branch. Supporters contend that the constitutional war powers critics object to are exactly the same war powers that Abraham Lincoln used to issue the Emancipation Proclamation in 1863 in the face of Copperheads, and that cases like Ex Parte Milligan should be distinguished from subsequent Supreme Court cases such as Ex Parte Quirin to which the administration refers as basis for the application of enemy combatant status.^[89] This position ignores the fact that in Milligan, the Supreme Court explicitly ruled that the Presidential claim of exceptional war powers was unconstitutional, whereas Quirin does not involve special war powers but merely discusses habeas corpus based on enemy combatant status. In addition to that, the validity of Quirin as a basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions has been disputed^{[90][91][92][93]} and refuted by the US Supreme Court in Hamdan v. Rumsfeld, in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay and that the Military Tribunals used to try these suspects were in violation of US and international law.^[94]

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of U.S. municipal law, in accordance with Article 6, paragraph 2, of the Constitution of the United States.^[95]

Legal experts Scott Horton, David Abraham, Ahmad Chehab, Arthur Versluis suggested that the concept of the "unitary executive," as interpreted by the Bush administration, appears to be based upon Carl Schmitt's state of exception.^[67][68]

Law review publications

• Calabresi & Rhodes (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review. 105: 1555–1216. doi:10.2307/1341727. JSTOR 1341727.
• Calabresi (1994). "Some Normative Arguments for the Unitary Executive". Arkansas Law Review. 48: 23.
• Calabresi & Prakash (1994). "The President's Power to Execute the Laws". Yale Law Journal. 104: 541–. doi:10.2307/797113. JSTOR 797113.
• Yoo & Calabresi (1997). "The Unitary Executive during the First Half-Century". Case Western Reserve Law Review. 47: 1451–1561.
• Yoo & Calabresi (2003). "The Unitary Executive during the Second Half-Century". Harvard Journal of Law & Public Policy. 26.
• Yoo, Calabresi & Nee (2004). "The Unitary Executive During the Third Half-Century, 1889-1945". Notre Dame Law Review. 80.
• Yoo, Calabresi & Nee (2005). "The Unitary Executive in the Modern Era, 1945-2004". Iowa Law Review. 90 (2): 601.
• Percival, Robert V. (2001). "Presidential Management of the Administrative State: The Not-So-Unitary Executive". Duke Law Journal. 51: 963. doi:10.2307/1373182. JSTOR 1373182.
• Christopher S. Kelley (2005). "Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency" (Document). {{cite document}}: Cite document requires |publisher= (help); Unknown parameter |url= ignored (help)