January 12, 2006
Judge Alito's Confirmation Battle, The Unitary Executive ...
By Ronald A. CassThis phrase has been used repeatedly in the hearings, as Judge Alito has been queried about why he is a fan of the concept and why he gave remarks praising it to the Federalist Society. (Senate Democrats don't know much about the Society, but they regard it as a cross between the Freemasons and a satanic cult, only with better suits.) The typical exchange asks something like this: "Can you tell us, Judge Alito, why you favor a theory of government that removes any constraint on executive power and makes the President the unchecked, unreviewable authority over everything the government does?" Frequently, the questioner asks Judge Alito to defend the theory of "the unitary form of government." ...
Of course, the theory of the "unitary executive," as Judge Alito has explained ad nauseam, has nothing at all to say about the scope of executive power. It has nothing to say about how that power is granted or how it is checked.
Instead, the theory says that "the executive power shall be vested in the President of the United States." Those are, in fact, the words of the first clause in Article II of the Constitution. This means that the President is in charge of the executive branch and that executive power is to be given to people who work for - and are in important ways controlled by - the President. This means that Congress can't pass a law, even with the President's approval, giving executive authority to people who work for Congress or for the courts.
Taken seriously, the theory of the unitary executive would require some reorganization of the "independent" agencies, especially the Federal Election Commission and the US International Trade Commission, the two agencies most insulated from presidential control and most subject to legislative control. Taken seriously, the theory would have invalidated the Independent Counsel law, upheld in Morrison v. Olson over the prescient dissent of Justice Scalia. Democrats drafted the law in the 1970s and vigorously supported the law when it was challenged in the 1980s, but by the late 1990s they were reading verbatim from Scalia's critique. Go figure.
Theory and Practice: Re-trenching
Of course, this isn't where the story ends. The theory isn't the end of the story because, although Judge Alito finds it interesting and in some ways compelling, he doesn't decide cases on theory. He recognizes all of the Supreme Court precedents that pull away from the vision of a unitary executive, and says that he'll start from them, not from the theory, to resolve cases that come before him.
That's pretty much the same answer Judge Alito has given in every area. He understands the theory, but he's going to start with the cases and the Constitution, with what the document says and what other judges have said. It's the standard way judges approach the job.
http://www.realclearpolitics.com/Commentary/com-1_12_06_RAC.html
Thanks for the useful info.
The only question I need answered at this point is how could the Dim brain trust let The Swimmer question anyone about ethics. The word isn't even in his lexicon.