Talk:Unitary executive theory/Archive 4

This is an archive of past discussions about Unitary executive theory. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Archive 1

Archive 2

Archive 3

Archive 4

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)

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Dana Nelson

An IP editor removed some content here that contained the following: "According to Dana Nelson, a professor of American studies at Vanderbilt University, "the theory of the unitary executive, first proposed under President Reagan, has been expanded since then by every president."[12]" and some text associated with it. I think this is a good edit for at least 3 reasons. 1) Dana Nelson does not appear to be an expert in this field. Her wikipedia bio lists her as an english professor, not any sort of scholar of executive power. 2) the attached citation here is plainly an editorial, not any kind of peer reviewed journal or fact checked news source and 3) we go on in the article itself to refute her claim, saying "n fact, the unitary executive was a matter of controversy long before the Reagan administration. For example, ..". Why are we including a claim by an non expert only to refute it in the next sentence. I am re-removing this passage. If there is disagreement, please explain it here. Thanks. Bonewah (talk) 18:36, 28 June 2018 (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)

Why was the bethlehem steel co vs truman and rulings against Lincoln during the civil war omitted?

Both cases ruled against the President and claims of absolute authority? Both were during wartime and invalidated the unitary executive claim, because if during war when the president is also the CiC and it aided the war efforts it was still found to be unconstitutional overstepping by the executive. If its not valid in those instances where it may have been necessary to have the executive have the power to help the country by using a "unitary executive" power it was stil found uncostitutional, then it is still unconstitutional any other time.

Remember the modern proponent of and advocate for the unitary executive theory was/is the infamous legal "scholar" John Yoo (who wrote and worked on the torture memos during Bush 2) who based his claim for the validity of the unitary by citing cases where the claim was rejected by the courts. Yoo claimed the "unitary executive" is a Constitutionally granted power. Yoo then cited court rulings against the unitary executive theory to support his claim that the theory is valid and the president could do anything including torture people. Look it up.

Shitty 1st year law school students wouldn't get away with that argument if they tried to pull that shit on one of their Professors.

All this wiki should be is:

The unitary executive theory is unconstitutional and has been ruled unconstitutional by numerous courts including the US supreme court. While many claim otherwise, the courts have not revised this ruling. Unitary executive theory is unconstitutional. Period. StillCrazy1 (talk) 17:20, 12 December 2019 (UTC)

Notes on direct accountability of the members of the executive branch to We the People

Accountability of members of the government to We the People is a cornerstone of individual liberty in a free society with strong government. It should be evaluated as a reciprocal measure of a perceived risk that the particularly organized government composed of particular individuals vested with particular powers is not directly accountable to We the People. Other metrics and considerations are of lesser deciding power while deliberating what permanent discretionary powers should particular segments of the government have.

There is this problem with the executive branch that, except for the Prez, no other member of it has been elected by the voters. This strongly suggests that executive powers should be squarely vested with the Prez (who has been directly elected by the voters) and not with the members of his administration (who were not elected). Such arrangement gives us the best chance that the Executive branch is de facto directly accountable to We the People and - therefore - has strong incentives to respect our individual rights and entertain our legitimate requests. On the other hand, permanently delegating substantial discretionary powers to unelected (and, perhaps, unremovable) bureaucrats will substantially diminish, if not eliminate, their direct accountability to We the People. Our individual liberties are not going to last long under such an arrangement as soon as the unaccountable bodies begin restricting our freedoms and denying our legitimate requests. And their supposedly corrupt propensities, if materialized, may prove hard to remedy in a quick and practical act.

The above argument, in addition to other arguments presented in the main article, provides strong and logical rationale in support of the strong unitary executive theory.172.88.197.74 (talk) 08:04, 16 September 2020 (UTC)

Wikipedia is not the place for original research. Do you have a link to a reliable source making this argument? Bonewah (talk) 16:42, 17 September 2020 (UTC)

Below is a collection of quotations from various sources regarding the utmost importance of accountability to the people in the context of executive power.

"It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it."

Plubius [Alexander Hamilton]

Federalist Papers: No. 70

The Executive Department Further Considered

"Hamilton argues that unity in the executive branch is a main ingredient for both energy and safety.[2][7][8] Energy arises from the proceedings of a single person, characterized by, "decision, activity, secrecy, and dispatch," while safety arises from the unitary executive's unconcealed accountability to the people."

Federalist No. 70

https://wiki.riteme.site/wiki/Federalist_No._70

"Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U. S. 200, 449 U. S. 211-217 (1980). A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, post at 487 U. S. 1020. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty."

Page 487 U. S. 710

U.S. Supreme Court

Morrison v. Olson, 487 U.S. 654 (1988)

Justice Scalia, dissenting

"But even if it were entirely evident that unfairness was in fact the result -- the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration -- there would be no one accountable to the public to whom the blame could be assigned.

I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution -- a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished."

Page 487 U. S. 731

U.S. Supreme Court

Morrison v. Olson, 487 U.S. 654 (1988)

Justice Scalia, dissenting

"Now, the Constitution established a single President, chosen by the nation, who would be obliged to take care that the laws are faithfully executed. But in order to fulfill that role, it’s necessary that the President had the responsibility and the control over the executive officers who would assist him in administering those laws. Now, I would submit that Humphrey’s Executor represents a significant departure from that constitutional scheme. That decision envisioned an administrative state that would wield significant governmental power independent of the President and with little forethought and accountability for the democratic process. "

[...]

Now, the President’s supervision is not just a matter of presidential power, but it’s also presidential accountability. It guarantees that the people may select the President and then hold him personally accountable for how his administration executes the federal law.

[...]

For these reasons, I don’t think that the vision of agency independence reflected in Humphrey’s Executor accurately describes the current state of the law. And while the decision remains in place, I think that in recent decades, we had seen a move towards greater presidential control and accountability. "

Hon. Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, United States Department of Justice

in Restoring the Executive Power: Revisiting Humphrey's Executor, Reviving the Unitary Executive

Executive Branch Review Week Webinar

https://fedsoc.org/events/restoring-the-executive-power-revisiting-humphrey-s-executor-reviving-the-unitary-executive

"Far more important, only if because they are so much more common, are the thousands of executive decisions made every year that are, because of Humphrey’s regime, unaccountable to the President and therefore the electorate. And that for me is what the debate over Humphrey’s is really about. It isn’t a question of presidential power. It’s a question of democratic power, of popular sovereignty. It’s a question of whether the American people have the power through their vote, or whether the power resides with a permanent ruling class in the economic, political, and social enclave of the federal city. And that is a very big question. "

Jesse Panuccio, Partner, Boies Schiller Flexner LLP, and former Acting Associate Attorney General, United States Department of Justice

in Restoring the Executive Power: Revisiting Humphrey's Executor, Reviving the Unitary Executive

Executive Branch Review Week Webinar

https://fedsoc.org/events/restoring-the-executive-power-revisiting-humphrey-s-executor-reviving-the-unitary-executive

"In this sense, the theoretical differences in the debate over the unitary executive may not come down to much in practical application. Under most any view, the president can legitimately exercise control over the rulemaking process. And this is as it should be, for many reasons. The most important of these -- perhaps counter-intuitively – is the check that clear responsibility provides over presidential power. Were authority shared among multiple persons in the executive branch, it would be relatively easy for the chief executive to avoid accountability for his actions. He would always be able to point his finger to some other officer, and mumble “my hands were tied.” But with ultimate authority vested in the president, he is held to account for decisions, enabling voters – as well as other policymakers – to assign blame or credit."

The Rulemaking Process and Unitary Executive Theory

Testimony before the Subcommittee on Commercial and Administrative Law

House Judiciary Committee May 6, 2008

James L. Gattuso Senior Research Fellow in Regulatory Policy

Thomas A. Roe Institute for Economic Policy Studies The Heritage Foundation

"Similarly, if the Justice Department is independent of the president, there can be no accountability to the people for the exercise of its powers. Here the problem is actually worse than that identified by Hamilton. He worried about the evasion of responsibility that could occur among executive officers answerable to the people. The contemporary view, however, sets up the attorney general — an unelected official — as the highest law enforcement authority. The only way the Justice Department can be disciplined by the kind of “responsibility” to the people that self-government requires is if it can be directed by the only elected executive branch official, the president."

No Easy Task for a President to "Abuse" His Authority Over the Justice Department

Commentary

Carson Holloway, Ph.D.

Visiting Scholar, 2014-15 Visiting Fellow in American Political Thought

The Heritage Foundation

"Political accountability lies at the very heart of the republican government envisioned by the Founding generation and carried into practice by the Constitution. The Founders argued that in order for republican governance to succeed, the governors must be selected by the governed and held to account by them. (16) In such a system, the people could effect their political will by electing those who promised to support favored policies and replacing those members of the government who imposed laws that the people did not support. "

Liberty requires accountability: checking delegations to independent agencies

The Free Library

2015 Harvard Society for Law and Public Policy, Inc.

https://www.thefreelibrary.com/Liberty+requires+accountability%3a+checking+delegations+to+independent...-a0418603381

172.88.197.74 (talk) 22:45, 17 September 2020 (UTC)

Do you have an edit in mind? If so, please detail it here. Bonewah (talk) 18:54, 18 September 2020 (UTC)

I can write a draft the following weekend and share with you, thank you. 172.88.197.74 (talk) 00:01, 19 September 2020 (UTC)

This is an interesting take. When I did research on this theory, I found that the UET began in the 1970-80s and works backwards. The position of the President as the fulcrum of political activity in the United States began after the Constitution was ratified and didn't really start escalating until FDR and especially during the Cold War. I am curious to see what you publish and the discussion that lies ahead. FictiousLibrarian (talk). 21:25, 19 May 2024 (UTC)

Need for some practical points on presidential limits

In practice the President does not have direct control over many agencies and activities even in the executive branch:

agencies whose heads have fixed terms, notably those whose heads were confirmed under the president's predecessor
military decisions in the field
the civil service, protected by a distinct set of rules -- indeed, rather few federal government employees have an obligation to follow a President's instructions directly
the Federal Reserve, SEC FCC, post office, and other agencies with a board or a private-public partnership

The article appears to distinguish the president's power in a theoretical way only from those of the other branches ; if that's the relevant distinction here let's at least clarify explicitly the scope of the discussion excludes those limits on presidential action listed just above. -- econterms (talk) 00:11, 27 November 2017 (UTC)

According to the UET, the president should retain absolute control over these agencies insofar they serve to carry out laws with some hardliners going to far as to say the president carrying out regulations enforced by them. It is a difficult compromise between Congress and the President that has been strained ever since these agencies were granted more power in response to the Great Depression. Under our current constitutional system the president appoints who carries out these independent agencies and had little control or oversight of them because of statutory limits passed by Congress. I hope to make a few edits that delve into more detail/clarity in later revisions.

FictiousLibrarian (talk). 21:28, 19 May 2024 (UTC)