Talk:Unitary executive theory

Tags

• There's a real debate to be had about the unitary executive theory, but it's not to be found in the pages of the Huffington Post and Counterpunch. Cite to the law review articles and legitimate scholarship, and get rid of the cites to ranting blog posts.
• Even if you're going to rely heavily on the pop literature, there are several cites to The Nation and The New Yorker and magazines even further to the left; none to any conservative journals discussing the topic, or even to, say Richard Epstein in the WSJ.
• 35 footnotes citing to 60 or so sources, and exactly one of these sources, cited twice, puts forward the strongly unitary executive theory. The article reflects this wild imbalance.
• Meanwhile, the fringe "Carl Schmitt" synthesis put forward by an idiosyncratic editor that theorizes that conservatives are secretly emulating Nazi Germany (a set of edits that arguably violates BLP in a number of articles, such as John Yoo) gets ten.
• I mean, really, Dana Milbank, who writes snarky op-eds in the Washington Post, gets more play in this article than Christopher Yoo, a law professor who's written widely on the topic.
• "conservative legal thought" and "members of the Federalist Society" is redundant. There aren't any 21st century conservative legal scholars who aren't members of the Federalist Society. And anyone who's seen Richard Epstein on the topic knows that Federalist Society members don't hold a unitary view of the unitary executive theory.

Some cites if you want to balance the article:

• Calabresi and Yoo's book
• "The Presidency and Congress: Constitutionally Separated and Shared Powers," 68 Wash. U. L.Q. 485 (1990), is a symposium with several points of view.
• Lee S. Liberman, "Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong," 38 Am. U. L. Rev. 313 (1989).
• Steven G. Calabresi & Saikrishna B. Prakash, "The President's Power to Execute the Law," 104 Yale L.J. 541 (1994).
• Steven G. Calabresi, "Some Normative Arguments for a Unitary Executive," 48 Ark. L. Rev. 23 (1995).

But the article is an incoherent mess and arguably needs to be stubbed and started over. The first paragraph and bibliography are okay, but very little else is. THF (talk) 03:42, 5 February 2009 (UTC)

Excellent comment. Thanks THF, and please watchlist this article so you can chime in as we try to fix it up. Thanks!Ferrylodge (talk) 04:53, 5 February 2009 (UTC)

My concerns have not been addressed, but someone removed the tags with the notation "See talk." Not kosher. And, yes, articles can have both references and original research. THF (talk) 14:44, 5 February 2009 (UTC)

This form of debating while ignoring the numerous refs from legal and mainstream clearly is very not helpful and makes me struggle to adhere to WP:AGF. Nomen Nescio^{Gnothi seauton} 14:51, 5 February 2009 (UTC)

The fact that the article sources some of its statements does not mean that it's not riddled with OR elsewhere. Your edit-warring to remove the tag in the face of at least three editors who believe the tag belongs violates WP:NPOVD and WP:EW. And your only talk-page comment in response to my detailed critique is a personal attack. And you have trouble assuming good faith? THF (talk) 14:56, 5 February 2009 (UTC)

Quoth THF: "There aren't any 21st century conservative legal scholars who aren't members of the Federalist Society." I'm not an expert on the subject, but this seems like a wild overgeneralization. If it were in the article itself, I'd be slapping a "Citation Needed" tag onto it so fast the tag would likely ablate from air friction. Can you back up this sweeping statement?

Thanks,

206.55.188.83 (talk) 02:25, 24 August 2009 (UTC)

Scrubbing the Lyndon LaRouche material

I've deleted the whole nonsense about Carl Schmitt, which was a synthesized mash of blogposts, Counterpunch rants, and unpublished original research. I'd be very curious if that Wayne State thesis on which that whole section was based was written by a Wikipedia editor, so that there would be a WP:COI violation in addition to the WP:WEIGHT violation. It seems to have found its way into several Wikipedia articles. THF (talk) 15:25, 5 February 2009 (UTC)

Scott Horton anybody? Nomen Nescio^{Gnothi seauton} 15:31, 5 February 2009 (UTC)

Harpers isn't WP:RS for constitutional law controversies. And there's still the WP:WEIGHT issue: this is a fringe theory that doesn't belong in the article. THF (talk) 15:35, 5 February 2009 (UTC)

Clearly we need outside input if everybody objects to the use of legal experts. Nomen Nescio^{Gnothi seauton} 15:39, 5 February 2009 (UTC)

Again, the issue is WP:WEIGHT. There is an established published literature in the subject, but there is no evidence of it in this article; instead, there are COATRACK cites to screeds in Harpers and Counterpunch and someone's unpublished thesis. I have no objection to citing the leading legal experts in the area. It's only if you want to POV-push a fringe LaRouchian theory that you need to cite to Scott Horton's blog post on the Harper's web site. THF (talk) 16:01, 5 February 2009 (UTC)

Start with the basics

This article wades through some pretty deep weeds and it starts wading almost immediately.

I think there should be a concise definition of the UET (based on scholarly articles before we start talking about weak vs. strong and commentary.

The following definition existed in an earlier version. I think it is good and would like to see it restored to "The Theory" section.

The unitary executive theory (UET), in American political and legal discourse, is a theory of Constitutional interpretation that addresses aspects of the separation of powers. The theory argues that the power of Congress to divest the President of control of the executive branch is limited.

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language along with the Take Care Clause ("[The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."

The theory argues that the power of Congress to divest the President of control of the executive branch is limited.

Proponents of the theory argue that the President possesses all of the executive power and therefore he can control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power, not controlled by the President.

The judicial branch implications are that no part of the executive branch can sue another part because "the executive cannot sue himself." If the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.

After stating what it is, we can start talking about commentary and controversy.--Paul (talk) 14:50, 5 February 2009 (UTC)

I'm the one who put in the stuff about the weak version and the strong version, and I think it's very important. As Sunstein writes, no one disputes the weak version, and lots of people dispute the strong version. I think it's useful to distinguish between the two up front.Ferrylodge (talk) 17:42, 5 February 2009 (UTC)

I think that's right, and WP:LEAD suggests the same. THF (talk) 17:49, 5 February 2009 (UTC)

Okay, but the current version has all of these concepts too intertwined and starts discussing strong vs. weak before even stating what the original theory said, and never really makes clear what the strong and weak versions are. When I have the time, I'll draft a rewrite of this section attempting to make things more clear.--Paul (talk) 18:02, 5 February 2009 (UTC)

The changes suggested above indicate a fundamental problem with understanding the Constitution. To begin with Congress has all the power Article 1 Section 8. It has the exclusive power to legislate. The Presidents job is to preserve, protect and defend the Constitution and the laws of the United States which are made by Congess. If the Congess decides to stop funding a department of the Executive branch such as the defense department it goes away. It has done that in the past. If the Congress decides to change the number of judges in the Supreme Court they go away. it has done that in the past. If the Congress decides to take power away from the President that he appears to be ursurping it can and has done that in the past. There is no separation of powers in the Constitution. There is no judicial review there either. The Congress has the power, the President has the responsibility to follow their instructions on pain of impeachment.

In practice that is all well and good, but when the President refuses to obey the law or to follow it, and the Congress does nothing about it for whatever reasons, then rather than let it stand the people may vote someone else in and let them restore law and order. Rktect (talk) 16:34, 5 February 2009 (UTC)

• This article's fortunes should not be held hostage to the idiosyncratic and seriously flawed view of the Constiutution that you keep advancing.- Simon Dodd { U·T·C·WP:LAW } 16:43, 5 February 2009 (UTC)

• Before we start arguing whether the UET has any merit, as an encyclopedia, it is incumbent upon us to say what it is. It doesn't matter that anyone disagrees with the statement of the UET above, it is only stating what scholars have said the UET is. This is an encyclopedia not a blog, bulletin board, or debating society.--Paul (talk) 17:05, 5 February 2009 (UTC)

• Rktect, you are simply wrong. Congress does not possess all the power. It only possesses legislative power. The Constitution says: "The executive Power shall be vested in a President of the United States of America." The Constitution also says "he shall have Power to Grant Reprieves and Pardons....He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties....The President shall have Power to fill up all Vacancies." Read the 25th Amendment. It says over and over again that the President has powers and duties (e.g. when "the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President"). Likewise, the judiciary has power too: "The judicial Power of the United States, shall be vested in one supreme Court."Ferrylodge (talk) 17:40, 5 February 2009 (UTC)

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The President doesn't have power, he has responsibility. Its his job to preserve protect and defend the Constitution and the laws of the United States. As you note, when he does have power its with the advice and consent of the Senate, ie; Congress decides, the President follows instructions. Neither Separation of powers nor Judicial review are written into the Constitution, they have been delegated by Congress. Congress can if it wishes withold funding for any function of the Executive Branch, disband the Defense Department and downsize the Supreme Court, something it has done many times in the past. The President is only Commander in Chief when called into actual service and even then he is subject to the rules Congress makes for the military. Congress could if it wished turn the Whitehouse into a post office. Rktect (talk) 03:16, 6 February 2009 (UTC)

That's absolutely correct: Congress could indeed turn the White House into a Post Office. However, Congress cannot designate the Speaker of the House as Commander of the armed forces, and give Ms. Pelosi power to order around Barack Obama. There are limits to what Congress can do. Get used to it. It's been going on for a couple centuries now. Congress cannot force the President to nominate any particular person to the Supreme Court. Congress cannot decide that the Attorney General will be elected separate from the President. Congress is not omnipotent.Ferrylodge (talk) 03:20, 6 February 2009 (UTC)

Come on, people. WP:NOT#CHAT. Rktect, this isn't a blog for you to comment on. Your opinions are irrelevant to the article, unless you've been published in a RS somewhere, and then we can deal with the WEIGHT issue. Ferrylodge, don't encourage him. THF (talk) 03:23, 6 February 2009 (UTC)

For God's sake, Rktect, would you stop quoting At. 1 § 8 as if you think we aren't familiar with it? That's the second time you've done so in as many weeks. We know what it says. What we don't know is how you manage to impute this bizarre meaning you've concocted, or why that kooky theory is relevant to this article.- Simon Dodd { U·T·C·WP:LAW } 04:22, 6 February 2009 (UTC)

Sifting through the references

I've cut a bunch of references out of the footnotes, either because they were dead links, or blog material, and (most of all) because material did not mention the Unitary Executive Thoery and thus falls into the category of WP:SYNTH. However, I'd like to keep as much of the remaining footnote material as possible, so we can accurately characterize it and use it in an appropriate part of this article. That will be a lot of work, but it's doable. Of course, we can get other reputable suorces as well, but I don't think it would do any harm to make some further use of the ones that we have now.

The sections on the nineteenth and twentieth centuries don't even say anything about the unitary executive, so I'm inclined to just delete all of the chronological sections without deleting the cited sources. Then we can simply describe what the cited sources say about the UET.Ferrylodge (talk) 05:29, 6 February 2009 (UTC)

I'm slowly getting this done. More left to do.Ferrylodge (talk) 17:36, 16 February 2009 (UTC)

It's not easy being a janitor. THF (talk) 17:45, 16 February 2009 (UTC)

Almost done, but still some sweeping and mopping left.Ferrylodge (talk) 04:31, 19 February 2009 (UTC)

The Theory

As it presently exists in the article is a POV that is widely diasagreed with and should have its counterpoints represnted equally strongly immediately thereafter.Rktect (talk) 13:36, 6 February 2009 (UTC)

This is not a POV, it is what the theory is, said description taken from a scholarly article on the subject. UET has unfortunately become the "Nazi" of constitutional law, with people turning away in horror as they prepare to stamp it out. But that is not the concern of an encyclopedia, which should define what a thing is and perhaps mention a few scholarly opinions about it. Nothing more.--Paul (talk) 14:41, 6 February 2009 (UTC)

Any time you have a single source, thats a POV. Why not use what other constiutional scholars such as Bruce Fein or John Dean have to say on a point by point basis. Thats what Wikipedia would normally expect in a good article. You could discuss what is said about it from several different articles with a significent improvement in quality. Rktect (talk) 19:14, 6 February 2009 (UTC)

Where on earth do you get the idea that Fein or Dean are constitutional scholars rather than columnists and polemicists?- Simon Dodd { U·T·C·WP:LAW } 20:49, 6 February 2009 (UTC)

Bill Moyers

Bruce Fein

Author of the New Book, Constitutional Peril: The Life and Death

Struggle of Our Constitution and Democracy, to Speak at ACLU of Massachusetts Forum

Please join us for a provocative conversation with author and constitutional scholar Bruce Fein as he discusses his new book, Constitutional Peril: The Life and Death Struggle of Our Constitution and Democracy.

When: November 12, 2008 Where: Law Offices of Goodwin Procter, 53 State Street, Boston Time: 8:00 a.m.

Bruce Fein is a lawyer who specializes in constitutional and international law. He served as general counsel to the Federal Communications Commission and then as deputy attorney general in the U.S. Department of Justice during the Reagan administration. A regular contributor to the Washington Times and Politico.com, Mr. Fein has also been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institution, and an adjunct professor at George Washington University.

Mr. Fein has been advocate of the impeachment of President Bush, has testified before Congress on signing statements, Executive Privilege, and civil liberties. He most recently was quoted in The New York Times Magazine

article, After the Imperial Presidency, by Jonathan Mahler.

Fein is a conservative constitutional scholar outraged by ideas like the UET.

John W. Dean, is a FindLaw columnist, and a former counsel to the president.

Constitutional scholars including Johnathan Turly, Bruce Fein and John Dean have argued that the Constitution does not grant the President the right to make his own laws or refuse to execute the laws made by Congress. Rktect (talk) 21:12, 6 February 2009 (UTC)

Neither of them are constitutional scholars. And while Jon Turley is, I find it very hard to imagine that he has ever been so foolish as to argue that the President cannot, in any circumstances, refuse to execute a law made by Congress (I find it hard to believe that anyone has made such a claim; that Congress can make an unconstitutional statute and the President can refuse to enforce it is uncontroversial -- as, for that matter, is prosecutorial discretion, which is exactly the same thing: refusing to execute a statute. No one - so far as I know, no one ever - has claimed that prosecutorial discretion violates the Constitution). And nobody argues that the President can "make his own laws." We have a veritable field of strawmen, some of them set up by Dean and Fein, but none of them of any relevance to the issues raised by this article.- Simon Dodd { U·T·C·WP:LAW } 22:10, 6 February 2009 (UTC)

We have many times in our history had presidents who refused to obey the law. Jackson, Lincoln, Johnson, Nixon, Bush come to mind immediately. That doesn't make it legal or constitutional or set a precedent that lets the next guy go a step further.

I guess the reason everyone else considers them constitutional scholars and honors them for their reading of the law and opinions on it and you don't is that you have a different definition of the law than they do. In your concept laws are more like guidelines and suggestions.

The way laws work is that if they aren't enforced they cease to be laws. Your concept is that if you can get people to consider themselves above the law, make their own and break everyone elses than thats a step toward deregulation which you consider a good thing. Eventually you get to where you have no laws and then you have no crimes.

The moment a President refuses to execute a law made by Congress he breaks his oath to preserved protect and defend the Constitution and the laws of the United States, becomes a criminal, and should consider himself subject to impeachment.

Congress should impeach him and then he should stand trial for whatever law he broke and crime he committed. If that doesn't happen then Congress is in dereliction of duty and needs to be replaced.

No law that Congress makes is unconstitutional until it comes before the Supreme court and they strike it down. There is no "prosecutorial discretion". Breaking the law is breaing the law regardless of who does it. As soon as a president starts advising his department heads that they should obey his executive orders instead of the laws of Congress, Congrss should impeach him.

I fully expect Holder will begin investigations of the laws broken by the Bush administration as soon as Obama fixes the economy, ends the wars, brings the troops home and fixes global warming and peak oil Rktect (talk) 00:18, 7 February 2009 (UTC)

Gentlemen, the talk page is an unreadable mess in part because Rktect publishes these rants in violation of WP:NOT#CHAT and everyone else violates WP:NOT#CHAT to point out how he's wrong. If Rktect is going to ignore Wiki policy and abuse the talk page like this, the least everyone else can do is to ignore him rather than to stoop to his level. THF (talk) 00:39, 7 February 2009 (UTC)

Use of lists in citations

What is the thinking behind using lists in the citations? Take this reference for example

^ a b c d e f g h i Suggested interpretation of War Powers in the Bush administration * The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? By JENNIFER VAN BERGEN, Findlaw, January 09, 2006 * The President Does Not Know Best By Elizabeth de la Vega, Tomdispatch.com. Posted January 19, 2006 * How Much Authority Does the President Possess When He Is Acting as "Commander In Chief"? Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent By EDWARD LAZARUS, FindLaw, January 5, 2006 * George Bush's rough justice - The career of the latest supreme court nominee has been marked by his hatred of liberalism by Sidney Blumenthal, The Guardian, January 12, 2006 * Vice President Cheney and The Fight Over "Inherent" Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11By John W. Dean, FindLaw,February 10, 2006 * Konzentration der Macht - Sollten die Republikaner die Wahlen am 4. November gewinnen, gefährden sie mit ihren Kandidaten für den Obersten Gerichtshof letztlich die amerikanische Verfassung by Garry Wills, Süddeutschen Zeitung, October, 29, 2008.

Here we have 6 different citations cobbled together, including one in German and at least one editorial, that is sited 9 times in the article. This use of citation lists smacks of wp:syn, especially the use of editorials. Bonewah (talk) 19:33, 16 February 2009 (UTC)

Yes, I would agree. Also, every similarly formatted citation list we've double-checked in this article was inappropriate WP:SYN, so, as an intelligent Bayesian, it would not suprise me one bit if this one turned out the same. And, as I've previously discussed, there's little reason to resort to op-eds to source this article when there is a wealth of substantive law review articles that have not even been cited. THF (talk) 19:50, 16 February 2009 (UTC)

So i took the time to read the Elizabeth de la Vega article and have come to the following conclusions: 1) This is an editorial. 2) Tomdispatch.com is not a reliable source for legal opinion. 3) The article does not seem to confirm any of the claims for which it is used as a citation. I am therefor, going to remove this citation from the list of citations. Bonewah (talk) 21:28, 16 February 2009 (UTC)