Next Justice to believe in "Unitary Executive" theory?

Well, this is akin to another story on this board:

Obama Doctrine- Kill don't Detain

and an earlier Glenn Greenwald piece: Presidential assassinations of U.S. citizens

with a follow up piece last Wednesday, April 7: Confirmed: Obama authorizes assassination of U.S. citizen

All of this is of course the legacy of a long developing problem exemplified, even glorified, by the Unitary Executive Theory, first formulated by a couple of young conservative legal scholars who started the Federalist Society back around 1982, and who developed a four volume collection of work on the topic, culminating in a kind of executive summary tome of the work, that's a book in itself:

The unitary executive: presidential power from Washington to Bush  By Steven G. Calabresi, Christopher S. Yoo, 2008, Yale University.

When we (through our representatives in Congress -- Remember Nanci Polosi in 2006? Impeachment is off the table?) failed to impeach the Bush crime Presidency, we allowed him to pass on even further Presidential powers to the next President, as the UET theorizes it does, and attempts to justify with their conservative strict constructionist legal formalist based theory.

The Federalist Society, to which our now heavily conservative balanced SCOTUS five conservative members are tied, has become one of the largest and most influential professional and student organizations of its kind since it's inception:

A Presidential System is considered dangerous because:

We are so screwed.

(and so is this software -- sometimes, like trying to do this post)

 

Prophetic words I've heard here before......and I agree.

That's cool.

I just wish the person who said it recently, I'm sure it's who you mean, but only after Obama was elected, hadn't been ridiculing me for my efforts to detail why we were screwed on all my UET series threads back in 2006-2007.  We might have had something in common in our agreement.  That work that culminated in this thread I started in February 2007, and kept adding to up until we moved to the next board:

 Democratic Congress takes on the Unitary Executive   Page 1 2 3

I wonder how many people in the tea party movement are concerned about Obama from this perspective?  Oath Keepers, for instance, who are often featured at tea party rallies?  What do you think their take on this UET issue might be in terms of the Republic and the Constitution they take an oath to defend? 

The UET has been my biggest Constitutional, and thus political concern, one I raised in the primary, one I raised in looking at both Obama's and Hillary's advisors and potential staffs, which Obama followed through with, and their positions on the institution of the Presidency.  One that concerned me greatly about the leaders in the Senate and Congress, not Kucinich, not Ron Paul, not a few others who showed concern and wanted to do an impeachment because of this problem of passing on power to the next president, exactly what has taken place.

I think it would be great if this could be raised as an issue amongst those in that tea party movement.  It very well could be a uniting issue.  But if they want a return to a strict constructionist reading of the constitution, they will come up against the conservative legal community which is using that reading of the Constitution to justify the UET. 

So then what?  What do the Oath Keepers do about their oath?  What is this Republic they want to defend and maintain?

While this is a possibility so is the possibility that the balance of power be brought back to equilibrium. That the President be "granted" extra-constitutional powers, the constitution doesn't grant nor even support them. I doubt that the right-wing court would act to constrain authoritarian power, after all it acted to install Bush as President in a move that ignored the constitution as Stevens put it "The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors." It then refused to constrain Congress when it gave Bush its explicit power to declare war. Congress and the SCOTUS simply refuse to act constitutionally and act as co-equal to the Executive.

The constitution doesn't appear to be worth the parchment it's written on. Nice rhetorical tool though.

From my reading of the Federalist Papers and those that were the original Federalists, today's Federalists aren't, they are authoritarian. As I see it, Federalists simply wanted the Federal government to act as a national "glue" and to ensure that authority wasn't abused by lower level government (if people were afraid of too great a central power why wouldn't they worry about too great a more local power?). I think that Federalism has been transformed to function more as a means to achieve corporate and religious ends at the expense of the public good.

I think this is an important formal issue to retain, but as a strategic matter, if you are dealing with the empire, you might need the powers of the emperor. It is hard to look to a healthy legislative process or the wise judgement of the Supremes to bring us back to Constitutional "law and order."  Taking back the power from the Pentagon appears to be a bigger obstacle than how the White House is run.  The powers of the President remain contextual to the powers of the empire.  Serve them and the way ahead is paved.  Go against them or ask them to "reform," and they will always hedge any bets to resist the the politician in their way.

We have been so screwed from the beginning of the imperial diversion from democracy and global responsibility.  It did not just happen under Bush and Cheney, and to blame Obama for it is strange.  What is being charged is that by continuing any of this, Obama is embracing and approving the unitary executive.  I will be interested in his memoirs on this question, but he really is not setting any precedents that cannot be overcome.  It could well be that to sacrifice these powers in a corrupted DC would be metaphorical suicide or surrender.

The big perspective point is that the empire has been here for a while and changing or bringing it down will also take a while.  It may not be a straight ahead solution either.

Jeff, the court isn't going to do anything that's not brought before it.  As I'm sure you are well awae, the court doesn't go looking for cases, It's not proactive, so you have to keep that in mind.

The most troubling thing it did regarding Bush V. Gore was to accept a case that heretofore had been left to the states, and it decided the case based on issues that should reasonably be extended to all states, that some three percent of the votes did not meet certain criteria of fairness due to the way the votes were cast and collected.  This implication can be spread nationwide because voting is not done on homogenous basis, it varies considerably. They opened a huge can of worms, then closed it, and in the process, votes weren't counted and a President wasn't put into office.  Gore is as much to blame for the legacy of the ruling, for not fighting it, as anyone.  Not recognizing that overlooks the true legalities that the UET Constitutionality brings as a threat to our system. He allowed this glaring precedent to be used once without challenge.  Now, the problem with that comes back the the legal problem of the Unitary Executive and whether it can be kept in check given our system as it is going.

Most of what Bush did on the advice of legal advisors like John Woo regarding his right to act as a "War President" has not been challenged.  Challenging it could have been done by Congress in an impeachment process, and then from there perhaps the Supreme Court might have got involved.  Now the nation is stuck trying to go after these issues one at a time, in court.

There was a lot of hubbub about the use of signing statements being used to try to take the place of the line item veto.  Mostly it didn't actually do that. It bordered on it, it pushed it, it pushed legalities, and it therefore advanced the power of the presidency each time it did and wasn't challenged. 

Challenging the entire concept of the signing statement is very, very problematic and may go too far (Constitutionally speaking) to constrain the powers of the President, and unconstitutionally make the balance of powers go against that institution, which of course no Supreme Court would be obliged to enforce according to its Constitutional mandate. 

These were the issues and thus the basis for the study by Calabrisi and Yoo in the first place.  They saw that the office of the Presidency was being weakened by Congress, had been nearly neutered after Nixon, with the rise of certain acts in Congress, like FISA, and so began the effort to examine the Constitution, the Constitutional history and advance a theory they called the Unitary Executive Theory.  Though they called their society the Federalist Society, this task they set for themselves (with now considerable corporate funding I might add), was not based on all the Federalist Papers, but the one's that focused on the President's specific powers to interpret the Constitution in Article I, Section 7, and his powers to enforce the Constitution in the "oath" and "take care" clauses, in Article II, Section III.  In particular look to Madison's Federalist Paper 49 and his interpretation of the Presidency for insights into their point of view.

Mostly what the Bush Administration signing statements did was inject vague language about the president's rights to enforce or not enforce a line in a bill based on the Unitary Executive into the bills, which, thanks to Attorney General Edwin Meese, are now entered into the Federal Registry, starting back in 1986, and they begin to take on the force of law, just as the laws signed are.  They need to be challenged directly in order to be dealt with.  Of the three types identified by Chris Kelley and others, (Constitutional, Political, Rhetorical signing statements), only the Constitutional ones actually challenge a portion of a law, and only those are subject to being challenged for their constituionality. 

Going back to when they were first added to the Federal Registry, all the presidents have been challenging portions of the law with signing statements.  Most of those challenges come up only where the president directs the bureaucracy to do things, and actually finding a legally challengable instance is a nightmare of legality and attention to the President's network of duties, most of which occur through his appointed heads of departments.  There are now hundreds of those entered into the Federal Registry thanks to Reagan, H.W. Bush, Clinton, and Bush.  Bush only made it a public issue because he was so outlandish with his neo dictatorship style with the Office, which was probably more attributable to his neoconservative advisers in his first term combined with his Vice President and Rumsfeld.

The most glaring of questions -- complying to the FISA requirements to get a warrant for surveillance in a national state of "terrorist Induced" emergency -- was a huge and expensive legal problem, if anyone recalls.  There are now hundreds of these little challenges in the huge Federal bureaucracy related to presidential powers to deal with.

The UET is a powerful and legally oriented challenge to the separation of powers.  The theory behind it now has a growing body of legal minds being trained in our law schools.  They are proponents for a particular legal theory for interpreting the Constitution, the Formalist family of theories.

And what's your plan for getting the emperor you want in place so he or she can make these choices that will bring us back to "law and order."  And what is "law and order" if not the interpretation of the Constituion by the emperor? 

Don't you see the power of this?  The president is constrained by the Constitution, Article I, section 7, the Presentment Clause, and Article II, Section 3, the "Take care that the laws be faithfully executed" clause.  That's technically what Bush was doing.  The question of whether he was or wasn't doing so Constitutionally is what needed to be challenged by an impeachment process before the "law" that Obama is also following, and using, got established and passed on.

When I used the term "criminal Presidency" above, I was being purposefully provocative.  Technically at this point, nothing in that presidency is criminal. Impeachment wouldn't have made it criminal either, but it would have made all of it open to question, just as the impeachment of Nixon for his surveillance crimes made for actions against the powers of the President by Congress.  These conservatives that rail against the weakness of Carters Presidency do not take that into account.  The first project set upon by the Reagan conservatives was to counter those laws by Congress.  The UET is part of that project.  Now they have the enemy in the emperors seat (as they see it) and the flaws in their project are coming back to haunt them.

 

Exactly what is the process for overcoming this in place obstacle of the military industrial complex?

You see, it's just rhetoric when it comes up against the Constitution.  If the Congress has been overcome by representatives of that MIC, and if their states benefit from the Federal spending for military projects in the tax subsidized industries that support the MIC, where does taking back this power of the president begin? How does this mythical word "we" apply to that?

The software of the system has many redundancies to fight our puny efforts, and if we damage it in some way, other elements reset it.

In my future handbook on how to bring down an empire and restore a democracy, I will have all the steps clearly ordered and described.

Ren, you describe the pathology well as always, and the reset of the narrative to maintain the present order is endemic to the system.

I have described this as a discovery learning process where we will learn in the wilderness how to get to the Promised Land--or to recognize it at last.

First we have to get out of Egypt in the Exodus meme.  I think it is a very apt story for social change and community organizing, btw.  And the point is that Moses is the process agent for the real "leader."

The epistemology of "following the pillar of fire and smoke" is about trying to keep up with what is going on rather than trying to control it.  Of course, all the rest of the Golden Idol and resistance to Moses is about thinking of going back to Egypt or why some other magic power needs to divert them from the path of community development and becoming a People instead of a refugee band.

This is why I like Korten as a focus for imaginative thinking, but it is also why I like Kevin Philips for doing the autopsy on the financial myth of Wall St. divinity.  Like Pharaoh, Wall St. cannot live up to its self-deification.

The picture of leadership in the story if reassuringly human.  Moses thinks he is not the guy for the job, so he asks for an assistant, and the assistant tends to be more problem than help.  He performs miracles without knowing any of the tricks.  This is interesting too.  We can do more than we think we can, if we are working with the power of reality instead of manipulating it.  

The more we understand the nature of the problem, and as that deconstructs our assumptions about its reality and authenticity, our thinking about the solutions can evolve.  Remember also that evolution is more episodic than linear.  We experience frustration and run out of ideas.  Then, something that we planted and forgot sprouts or somebody brings the missing piece and we can see everything in new light.

I love your imagination and creativity, and there are a number of others who have brought some really bright stuff that never would have entered my mind otherwise.  This is why the most important spiritual principle in a true community of faith is corporate worship and the honor and reminder that we are in this together.  As the celebration of open minds in communion with one another, "worship" is about being in on the privilege of creativity instead of just passive and unconscious cattle being driven by the Big Cowboy in the Sky.

Do not worry about the mundane and why truth makes us uncomfortable in our freedom.  Being aware is stepping out of the drugged state of slavery.  It is being aware of pain and dysfunction and not in need of lies and myths to hide from reality.  But it is also deep in hope because being able to see the lies and dysfunction takes away their authenticity and leaves them as shells of power.  The yearning to heal creation gains realism and the necessity of rendering unto Caesar is only how to deal with the usurpers until reality takes them down.

I don't disagree with your general sense of how to develop an attitude about all this, but I want to emphasize that I was not being flip when I asked for specifics.

Let me back up and say that I first became aware there was such a thing as a Unitary Executive Theory when Bush signed a Defense Spending Bill with parts injected about anti torture by John McCain. He did so to much public hoopla just before Christmas of 2005, and then in the quiet, out of the limelight, put in a signing statement that said he could negate certain elements of the defense spending Bill that contained McCain's much supported and publicly lauded torture ban -- specifically the ban. ...Smile in your face while signing the bill, the back stabbers...

This negation was based on the UET, and also on the advice from such "authorities" as John Woo, who wrote legal briefs and opinions that said he could torture if he needs to, according to principles in the UET.  People like Cheney had a whole stable of Federalist Society lawyers with similar attitudes, and then there was our head Chimpanzee with "this would be a heck of a lot easier if it were a dictatorship and I were the dictator."  Yeah. 

Anyone Remember?  Here's a bit from CNN for a reminder.

Following that were some articles in FindLaw, one from John Dean, another from Jennifer Van Bergen, both of whom continued to follow the legalities of the uproar that arose in the following year over the UET and the signing statements, which I chronicled on the other site in about four different threads, threads which were met with concerted opposition from our old friends, Ronald Rutherford and Loganthor.  I learned most of what I know now about troll tactics and their techniques in thread derailment during that more than year long effort. The two wakeup articles for me were:

The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration by John Dean.

The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? by Jennifer Van Bergen.

If you want a stroll through the effects of this via Dean's interpretation, here's a FindLaw list of his articles, including his perspectives on authoritarianism, which he woke up to, a topic long dear to my own heart, and his reflections on the UET and the Obama Administration.  Unless you are a strict constructionist and are willing to overlook the impact of that legal theory on the office of the Presidency, none of it will make your sleep easier, more comforted; so if you don't want to be disturbed I don't recommend the readings.

I also learned a hell of a lot about something that had been insidiously going on for more than twenty years and was now encircling the Constitution like a viral plant wrapped around its heart like a vice. That "plant" was a very intelligently designed, legal attack on the very meaning of the Constitution.  Which in their minds, of course, is the "correct" interpretation.

The intention, I discovered,  is to overwhelm the liberal interpretations of the Constitution, and their Constitution "distorting" precedents; interpretations that allow the law to be interpreted a bit more creatively (or "Realistically" as the theory has it) as the conditions of the world change. The thrust of this carefully contrived legal tactic is to supplant American instrumentalist theory of legal realism, much despised by conservatives as the hated "liberal" interpretation that allows such judicial "legislating" as Roe v. Wade, with a more conservative appeal of the positivist, formalist interpretation.  (They of course manage to ignore the 1886 ruling that made corporations legal persons.)  As an example of that theory, we get the originalist theory posters like dugfmjamul argued with extensive and determined logical fallacies, over and over on this site, pretending that it was THE theory and all others were fake and sneering at anyone who argued for them. And you probably remember the reaction to that. Of course he's been banned for his antics and the subsequent uproars, so that speaks for itself.

The idea behind this legal tactic is to use the law to make all protestations null and void by legal interpretaion.

It's brilliant in conception and scope.  The tea partiers and their like are anti government.  But they include Oath Keepers who haven't the foggiest clue of the existence of this tactic nor of its basic intent, which is to create an ever stronger Presidency, and thus a stronger central governing body headed by an emperor like position.  A position which is really an institution of it's own, a management committee of elites, with a CEO like figurehead, but that's irrelevant. The figurehead in place gives us all something to rail at while an institution behind the scenes works to make what's really important to take place.  Meanwhile they are manipulated by fear promoting their anger, and they pick up arms that only serve to reinforce the "Homeland Security" clamp around their necks, and then someone comes along and says: I'm not afraid of anything except losing the Republic.

Yeah.  What Republic? Which Republic?

If we are going to actually do something about this very broad and concerted effort to put the Constitution under this conservative theory of interpretation, and its result in a CEO like presidency and all the powers that go with it, we have to recognize these specifics. We cannot brush them off with rhetoric and hope that somehow the good intentions of the masses will one day overcome this viral vine creeping into our government. 

Attitudes are increasingly becoming marginalized as the system itself puts building block policies for such notions as "Homeland Security" in place and becomes the power in the hands of the few, while we are sheparded into corrals at election time and allowed to bleat our protests of the process to the wind. While the President is allowed to send assassins to kill US citizens deemed on high to be threats, without the glitch of messy due process.

I guess I am less excited by the internal dissection of imperialist revisions of Constitutional dogmatism than by attacking the Big Meme of the Empire.

I hold up the Pledge as an organizing center and conversation focus for sorting out all the questions of self-governance.  We will be bringing lots of memories and beliefs in the Constitution that will not fit together.  We will remember our history from at least two dominant story frames in conflict, but also in a much more diversified base of experience expanded by demographic, ethnic, parochial and local culture variety.

From the Pledge, I extract the question of empire/republic, what "indivisible means today," and why "freedom" has to be for all or none.  We can also look at why "under God" was added when it was and what it means for us today.  I think there is a non-theocratic way to honor that desire for a moral America together.

From the Green Challenge, I point people toward environmental design and the discovery that the technology of harmony and balance with nature works.  In fact, we already have most of the answers, but not how to implement them.  This turns the reality valence on this order and the reality of the future.

Korten is a good guide to economic rethinking.  At the project end it is discovery learning and community organizing.  It really can build functional systems from the ground up.  

Zinn left a great legacy for rethinking our past to get it right and correcting the myths spread by power.  

And I hope the cons get a lot of people to see Saul Alinsky as a smart guy who makes them sweat.  Taught me a lot.

This is such a complicated problem that we can get bogged down even in productive research.  If I have left questions unanswered that you want me to address, could you give me a fairly concise description of them?  I think we need to do both the micro and the macro here too.  There are obviously lots of things I did not address in the few points here, but I hope they gave you an idea of how I am trying to put this together so it can be useful to non-wonks.

DRC, you've illustrated my argument, in a sense.  This is an effective tactic because it is not a "non-wonk" issue.  It's too complicated.  It can't be sound bited.  You can't answer my questions without studying it.

I spent a year studying it.  I could probably write a PhD dissertation on the topic, which would only barely brush the surface.  I shared some of it on the old board before you showed up.  I had Kate at my back (you have no idea how smart she is) and I fought off various trolls and other conservatives who sneared at what I was trying to bring to the board.   I'm "friends" with Chris Kelley (at least he's on my Facebook, we've emailed, I read all his stuff, and he's followed my efforts at Thom's, sent helpful hints and commended me for them. Sent me his book. I may in some way have been instrumental in getting him on Thom's show during all this, but I don't know any details).  Chris is one of the nation's experts on the Unitary Executive Theory, and especially the signing statements angle.  He has a couple of related blogs, the first more specific, the second an older one that looked at how the media was covering the issue, and all the ignorance put forth on it:

Zone of Twilight.

Media Watch

He coached the young and very bright investigative reporter, Charlie Savage, then of the Boston Globe, since promoted to the Big Mama paper, the NYTimes, to his Pulitzer Prize for all his reporting on the topic during 2006.

I know this is not easily translated to anyone who hasn't done the work.

All I'm asking is that people realize how deep this is, how much effort it takes, and that taking a sign worn to a tea party rally in anger, driving around with bumper stickers, getting angry over things, is not going to deal with it.  It's a brilliant strategy. Its relentless. Its rather large in scope because it's taking place at the educational level described in that Powell memo.  I'd say it's a result of the spirit of that memo, and it's an identifiable tactic of it that can at least be pointed to.  If you want to talk about it as a conspiracy, well, go ahead. But if someone charges you with that in an effort to rebut what you are saying, then you are going to be challenged to come up with the facts and a narrative that makes sense of those facts.  Here is an example of such a tactic that I had to deal with over and over as I worked to make sense of this legal strategy:

Then a little while later, after I'd explained myself in further detail, complete with references to others who are much more learned in law than me:

Pure ad hominem propaganda, aimed at my character, not the information.  I dealt with it for more than a year.  Very instructive.

If you want to know more about this UET theory, and whatever might have been meant by the question that started this thread, and why I jumped in, in hopes of adding some depth and breadth to the problem from my own hard wrought research, you could at least browse through that thread, it was the last of a series on that board.  (The thread begins here)  You'll also get a pretty good education in troll tactics.  I had to fight them like I was on the streets of Deadwood.  We had no moderators then.  The subject was too complicated for one lone administrator to moderate, anyway. Oh, I guess there was Bill King.  Nuff said about that.

I am more than happy to engage in an educational process about it.  I don't expect you to provide answers to my questions.  I doubt seriously if anyone has them.  This is a battle taking place on many levels.  The software is built already with many redundancies.  You damage it in one area and it reboots and fixes them.  Its a whole "unitary" movement in many parts moving forward.  Each of us needs to develop a vision and a narrative to go with that vision.  We will not get that vision from the MSM.

But it's real, it can be understood, even though it can't be put into a sound bite.

 

OK, let me add to the initial post on this thread, as well as provide some information that I believe further substantiates the arguments I tried to raise in my posts about the significance of the UET, and the importance of why not doing an impeachment or some further prosecution of the Bush administration relates to the furtherance of the power of the Presidency and it's assault on our political system.

I was just listening to Glen Greenwald on Democracy Now! and he said:

So this is not the first time Obama has put someone up for something who actually represents some views I'd say are of the left, not the liberals like the DLC Democrats, but the generally referred to "progressives" that stumped and fought to get Obama elected.  Obama now has a history of folding to the right over these more progressive-leaning voices.  What's so significant about the office of the OLC for which Dawn Johnson was nominated over a year ago?  How does it relate the UET and the kinds of Constitution related things that the Bush Administration were doing with it?  "Things" we hear from many legal experts that were potentially unconstitutional and illegal?

Note that John Woo of the infamous torture memos was the Bush Administration's point man in the OLC. 

OK, that's what I have been talking about.  We need an accounting. I've been saying we need an accounting to deal with a threat to the Constitutional system itself if we are to ward of its inherent weaknesses that are built into the Presidential System our founders devised.  I spoke of those earlier, and referenced them, if anyone isn't familiar with them do a search for "Presidential Systems" and find out for yourselves.  You need to know.  This is not a joke.

We need an accounting.  Obama appoints someone who wants an accounting, who would stand in a position the OLC to monitor any of his abuses, he nominates her in January 2009 after he takes office, doesn't stand behind her, now she's withdrawn.  That's important.  That tells us the about real Obama, the Constitutional expert, and where he really stands on his position as Candidate Obama. 

It also corroberates much theory about what would happen when Candidate Obama took office.  The requirements of the office would pretty much wipe out all the pretty rhetoric used to keep the progressives out there pounding on doors talking about how things would change.  Yes, hope.

This is not the same crap being pounded out on this board by a very vocal right wing, pro tea party contingent on this board.  Not when you peal back the layers and see the core of the issues.  At the core, they didn't disagree with what Bush was doing.  I have threads recorded still at the old board to show it.  This is something else, and it's something we need to worry about. 

We are not brothers and sisters in arms with most of the anti central government tea partiers.

Glenn Greenwald's concerns about the Supreme Court nomination in that interview are also pertinent.  Listen closely to what he says about the reasons behind the most bipartisan likely support for Elena Kagan.

My guess is that of the three mentioned, Obama will pick her, and for those reasons. Not because he's playing some chess game with the conservatives.  This is the very heart of their UET strategy he's advancing.

In case anyone is missing the right wing account on this matter, I'll oblige, since I try to keep track.  I get daily emails from what I have winnowed out as key conservative sites.  That way I can have a good idea of the talking points I'd find here ahead of time.  One I get every day comes from a site that offers a collection of the "best and the brightest" from the right: Townhall.com

So here we go (couldn't find one about the UET, so this will have to do):

Empathy and the Supreme Court

Here's a little taste:

There you go, something from the best and the brightest.

The other key phrase in the argument is "impartial."  Oh, does he ever work that one!

The beautiful thing about teamwork is that we don't all have to do the same deep research and can profit from the work of others.  Ren, I am deeply appreciative of the way you have pursued this theme, and I agree with you about its importance.  

The propaganda mills run by the Right have real impact.  We know the lies become credible when repeated by people who are dressed up in respectable costumes.  And this stuff works because there is some deep vulnerability predators exploit.  

The sophists have an answer for everything, or better, a deflection.  Liars have to frame, and they know it.  Telling the truth can be naive.  Satan quotes Scripture.  And the Temptations of Christ were to save the World, not to get rich off owning it.

The appeal of the strong leader and decisive and effective President does not respect the Constitution.  Those who complain that Obama is not making the change he promised may think they want a really effective monarch instead of a constitutionally contextual Chief Executive with checks and balances.  They also want a Congress that will act with wisdom and without partisanship.  Really?

When you are managing wars on the other side of the world and negotiation about nuclear materials and weapons, how much domestic counter makes sense?  How could Congress oppose reducing the nuke threat?  Just watch.

We have not experienced democracy in any substantive sense for some time.  Keeping things from getting worse is not how to build a movement.  Frustration with politics makes apolitical solutions look attractive.  Hence the Libertarian dreams.  But also the alternative realities where all is harmony and love.  We do not see many realistic descriptions of non-angelic society embracing the need to govern ourselves because if they don't, others will rule over them.

The idea that "government does not work" or "is the problem" is an attack on democracy.  If democracy does not work, of course you need a king.

To the extent that America is "apolitical" meaning that the system runs with minimal public influence and managed consent, management has to be the typical top-down command and control.  Of course there is an interested group looking to hold and exploit the power of management.  And it needs to justify itself in "freedom" to confuse Americans about liberty and just being naked and alone.  

That's why this UET is so dangerous, DRC.

No, you can't build a national  movement for democracy when you are working every day to keep things from getting worse, a chink here, a chink there, while the big money interests write the legislation and get into the Presidency where the legislation, however progressively intended, is carried out through the bureaucracy. 

And then whatever progress that might be made at one chink or another to put a stop to the viral malevolence, simply reboots, and the system goes on as if nothing ever happened. 

History is incessantly whitewashed in newspeak through hierarchically dominated systems, including the now utterly owned and corporate-slanted fourth estate, which they continue to pound into to their willing, fearful constituents, is under some ambiguous fearful evil now labeled "liberal."

Yeah, I reread my post and realized that it was poorly worded and does indeed imply that the SCOTUS could "constrain" congress like a dad scolding a kid. Oh well.

 

Why did this get moved after I corrected the spelling of "my"? Something's odd with this site's software. Maybe it'll be moved back to its original position after I save this edit.

It is clear, now, why President Obama wanted to "look forward, not backwards."  This is exactly why we NEEDED to impeach President Bush.  The precedent has now been set.  President Obama clearly feels free to disregard the Constitution - authorizing the extrajudicial execution of an American citizen - without having to worry about being held accountable for his actions.  It is a sad day, indeed. 

 

I do think something about all this becomes clearer if one takes the trouble to understand this UE Theory.  Many think it's an outlandish theory.  But that's not enough to dismiss it.  More and more legal instructors are involved with the Federalist Society, more lawyers, and more and more students in its chapters, which are now in all the top law schools.  To say Obama "disregards" the Constitution, though, is problematic because this is an interpretation of it, and one that has not been adequately challenged. It's gaining precedence and that's extremely worrisome in our system.  Just look at how corporate personhood came to be, and became a precedent.

In looking into the boring, extremely wordy details of all of this, one discovers that many things go unchallenged in the system.

Now, a smart, legally educated person is well aware of all that. These guys are smart. 

So if you wanted to do something long term to change the powers of the presidency, which of course you believe should be changed in our tripartite balance of powers, especially if you are a democracy despising neoconservative and the like, and you believe it's good for the people to have a strong president, because you are at heart a Machiavellian, what better strategy than to go where no sound bite will go? 

Would you maybe work in the darkness of words and complex interpretaions, while huge processes are taking place in the circus atmosphere of the political system that will keep everyone's attention, while you work diligently to change certain key interpretations of the law, and then how the President (whichever President) must apply those laws?

The constitution is still the consitution. Precedent doesn't really mean anything, even the Supreme Court justices say so, thus all it would take is for a suit to be brought before the SCOTUS challenging a President's overreach and voila! the President could be slapped down. Even if the current right-wing court accepts the UE theory, a future court won't and could constrain the President to the role outlined in the constitution. The only way the UE theory could be applied without the threat of being refuted by the court would be if the constitution was amended to incorporate it.

Precedent doesn't do it. Except with silence, when people ignore a problem.

Will we give up on the illusion of democracy and accept the inevitability of empire?  I see the Federalist Society and its appeal to legalistic thinking akin to the Vatican's attitude toward Liberalism in general.  It goes directly to the distinction between Progressive and Liberal even if these terms are confused in use and identity.  Federlism is a Liberal rhetorical frame for the argument against democracy.  It justifies the UE and the idea that laws can manage a population instead of liberate it.

There is a strange union of Rightwing Protestants who ordain whomever the Spirit calls, and the highly regularized Catholic clergy to constrain both social justice and personal freedom and establish theocratic authority.  It does make sense when one looks at the congregations and finds them predisposed to obedience to authority and to be guided by leaders who know better because God has put them in authority.

Jeff, everyone starts with the Constitution is the Constitution.  It's just a bunch of words until it's interpreted. 

The point I keep driving home here is, this is an interpretation of the Presidential Powers according to the Constitution.  That interpretation is now roughly equivalent to the way five Justices on the Supreme Court tend to interpret it.  It's a carefully derived and elaborated interpretation.  It's being taught in Universities and Law schools by members of an organization that calls itself the Federalist Society, started by the two guys in 1982, Steven G. Calabresi and Christopher S. Yoo.  It's being taught in all the top Universities and law schools, John Yoo (no relation to Christopher except through the Federalist Society), for instance, went from Bush/Cheney's point man in the OLC, where he wrote the memo that set the precedence for torture as well as a lot of others that we questioned, that Bush instigated through such legal presidential doctrines as Executive Orders.

If the UET becomes not only precedent, but the dominant legal interpretation because enough of the carefully chosen Justices with this version of interpreting the Constitution have been put in a lifetime position to do the interpretations, then challenges will merely cement the precedence.  We are rapidly moving away from a point where challenges can solve the legal problem this presents us.  The way these people believe the Constitution should be interpreted, it now does incorporate the UET.

Would you please at least look at some of the material I referenced on this thread?  This is the condensation of about a year and a half's work on my part, it includes the scholarship of a number of legal experts who have spent their careers studying this topic.  If they are concerned, I think it's worth being concerned about.

At least look into:

 The unitary executive: presidential power from Washington to Bush  By Steven G. Calabresi, Christopher S. Yoo, 2008, Yale University.  This is the summary volume for the four volume set I read.  The four volume set explains that the UET has been present in not only the Constitution, but in the actions of Presidents.  And it explains it in excruciating detail.  I would have been happy with this last volume but I did most of my work from late 2005 through 2007.

From two of the top scholars on the issue:

Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency, by Chris Kelley.

George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements by Phillip Cooper

Here's access to a copy of Chris Kelley's doctoral dissertation:

THE UNITARY EXECUTIVE AND THE PRESIDENTIAL SIGNING STATEMENT. Christopher S. Kelley

Here are a couple of easy essays that give a start to understanding the depths of the problem:

The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? by Jennifer Van Bergen.

 The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration by John Dean

Imagine that this is a huge legal chess game taking place over now more than thirty years.  It began after the Nixon Impeachment.  While we are watching inarticulate tea partiers being manipulated by Fox News, getting out their guns, taking oaths to protect the Constitution, their intellectual elites (theirs are OK, they are conservative, it's the liberal elite who are the evil ones) are systematically inserting their interpretation of the Constitution into key institutional areas of our society, just as the Powell memo laid out to do before he was appointed to the Supreme Court by Nixon.  Their interpretation is based on a formalist theory of interpretation.  The formalist theory is against what it calls judicial legislation, which they have decided is the "liberal" version that has taken this country awry from the founders intentions.  It's a part of their in-place, inchoate anger being pumped up through sound bite media, and so their paying attention is not my paying attention.  But they can be said to be paying attention.  And they are getting ready... for something.

I'm not ignoring the problem. These people I've mentioned aren't ignoring the problem.  Lots of people have been running around with their hair on fire not ignoring the problem.  That includes Kucinich, Ron Paul, Ralph Nader, and I could list many more.  I've worked hard to bring it to the board, only to be sneared at by what I finally figured out were trolls who were looking for this topic to come up.  One of them brought his material from the Volokh Conspiracy, a Federalist Society blog, and I had to argue against ideas he brought verbatum from that board (I found them, I know). 

But understanding the problem takes a lot of effort.  I have the time and energy right now.  I'm a fast reader and I can  make sense of legalese because I've written legal documents.  When you say "Precedent doesn't do it. Except with silence, when people ignore a problem" -- what exactly do you mean by that?

If precedent doesn't do it, why has this nation gone to what it calls war for some sixty years now, without the declaration of war by Congress?  Haven't we protested, over and over and over?

But the UE theory hasn't been tested. The constitution doesn't support it and Yoo's arguments are unfounded. The problem is that Congress took no action against Bush and no one brought it before the SCOTUS. Precedent in no way cements the UE simply because it isn't supported by the constitution's specific wording and although it could be interpreted as supporting the UE, even that doesn't mean that it would be accepted forever. For example, see Kennedy's opinion n Lawrence v. Texas:

"Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

While it would have been better for the SCOTUS to constrain the Executive in misappropriating war powers granted to the Congress during Vietnam it can still be done. Until the UE is amended to the constitution, it hangs by a thread. The UE theory is unsupportable.

That seems pretty accurate from the ecclesiastical angle, DRC.  I've discussed this with Anti, who has a lot of background in philosophy, and we both agree that there is a deeper philosophical divide that crosses all religions, and that's the reductionist positivism that is always behind a fundamentalist doctrine as opposed to the more open to propositional attitudes of quantum possibility theoreticians.  Even the sciences have this struggle, and the science of the Twentieth Century has a deep struggle between a logical positivist empirialism, and a more open version of theoretical science that drives theoretical physics, and which Chomsky, for instance, used to make mince meat of the behavioral theories by psychologists such as B.F.Skinner to explain language acquisition.

 

Explain to me in detail how it's going to be tested, jeff. Explain how the test is going to get by the interpretation of five justices who stand behind the theory.

I'm not saying it can't be done hypothetically.  I'm saying: here's reality. How do you do it with this reality in place?

The UE theory is being put into the Constitution through laws that are in the Federal Registry.  Those happen through signing statements, which, thanks to Edwin Meese, are now part of that Registry since 1986.  It's become part of the interpretation of those laws.  It's not a constitutional amendment issue. It's an interpretation of the law regarding Presidential Powers issue.  Powers no president wants to give up because it make the job tougher in a more complex global world.

 

Congress can impeach and challenge its application under future courts. That a specific court rules it valid doesn't make it so for other courts, as Kennedy's opinion stated in Lawrence v. Texas. The court's opinion is simply that, an opinion. It may act to support law or behavior but it could also change. Congress doesn't necessarily require the SCOTUS to constrain the Executive.

Not precisely. The UE theory is being put into practise by the Executive branch. The constitution hasn't been affected and the Executive has only those powers provided by Article II, Section 2, which does not support the theory of the UE. True, Yoo's arguments may be accepted by certain justices, but that doesn't mean that that acceptance changes the constitution nor creates a precedence that compels future courts to accept them.

The problem is that no one has taken the time or has the guts to force the Executive back into its constitutional box.

 

And which century will this mythical future court come into being? Which mythical Congress is going to do anything, and why should they?  They don't respond to a few letters or emails from the very few of us who have the slightest clue what's going on, they have their corporate donors and the MIC to keep happy for empire. 

Meanwhile, in the real world, a President has done an about face on what he said he would do regarding the potential, uncourt tested transgressions of the previous president, because he finds himself in an atmosphere of contention and he wants to reserve these powers. (Please read something about the theory which explains how it's come to be used in the tripartite power balance) A Congress with a majority of Democrats behind him refuses to contradict anything, and when SCOTUS does overturn some element of UET, like secrecy, surveillance, or anti habeas corpus elements, they turn right around and create a new law to allow it. And then that law has to work it's way back up to the Supreme Court. Potential criminals are teaching the law to more law students.

The Constitution is like an umbrella under which all the other laws must be justified.  The UET is installed as language in the legislation through signing statements, and it becomes justified by the Constitution until called into question through a legal process.

UET language has been, and is being put into the Federal Register, thousands of instances of it, each one must be challenged, individually.  There has to be an instance where the President violates the said law he disagrees with, then that must be brought to court. 

Cumulatively these insertions into law have become part of a broader theory of interpretation that supports the President's actions.  Instances of this have been found through research by scholars going back to George Washington, and it has become a body of work being taught in top institutions across the nation.

 

 

And so why do you think I've gone through all the trouble I have to learn about this?

 

I fully understand your concerns. While the theory of the UE is applied by the Executive and not challenged thus making it the rule, the constitution does not support the UE. Also, law must be constitutional. Therefore, just because the Congress and President enact legislation doesn't make it constitutional. The reality of the situation is that the constitution doesn't support the UE and yet it stands, but due to political will, or rather cowardice, only.

What cannot in any way be ignored is that the UE is not supported by the constitution and unconstitutional legislation enacted as law is unconstitutional. When UE and the resultant legislation will be ruled unconstitutional is a good question. I think we are facing a dire situation, because the American people have refused their duty as citizens and accepted right-wing ideology as the operational paradigm. But, that doesn't mean that it will stand if and when the UE is challenged simply because the constitution doesn't support it.

I think that we agree here, I just wrote it.

The Constitution means whatever the courts say it means. If the Supreme Court says it enables an emperor/president...that's what  the Constitution means...and a body of law and precedent have been implimented to support that.

Retired Monk - "Ideology is a disease"

True. And that means that previous court interpretations can be refuted. This can be good or bad, but it proves that the constitution is indeed a living document.

Fundamentally, I think that the problem is that America has become right-wing. Our government simply reflects the people and enough Americans fully supported the neoconservative agenda and ideology to vote in right-wing officials. The question, as far as I'm concerned, is not whether the UE is fact but whether we, as a nation, are better than neoconservatism. If we are, then the UE will fall because it is not supported by the constitution. If we are not, then it will grow until we are an authoritarian state.

Jeff, this is the crux of the matter, and one that needs to be closely examined before anyone can confidently make a broad statement of this nature. 

You've claimed several times now that the constitution does not support the UE.  But that's an interpretation of the Constitution.  It's not the only interpretation of the Constitution.  It may not even be accurate to say the UET in general is not supported because it's not a simple theory.  It has many facets and there are many elements of it that progressives also agree with in terms of the very issues of balance of power.

Dugfmjamul also argued from his particular theory of the Constitution and he interpreted everything accordingly.  You can make of that what you will.  I think you got involved with him.

Anyone can become a legal "expert."  Pick an interpretation and stick doggedly to it and you have instant debate.

It's not that simple.  That's why I got so involved in studying it.  I couldn't dismiss it.

I too think the situation is dire.  Especially concerns about moving rightward and towards an even more authoritarian government (code word: fascist).  The CEO management style is needed to deal with the increasing complexity of the growing Federal Government, and we can't dismiss our government in a world of nation states where a rule of law over all can be applied. 

I am therefore concerned that concerted, almost mindless onslaught for a stripped down Federal Government will not result in a stripped down Military Industrial Complex, it will  not result in a stripped down Homeland Security state, it will not strip down support for the global economic elements of this nation which act through the Office of the Presidency and its policy setting, very vaguely described in the Constitution, who increasingly effect both the President and Congress.  Now I see John McCain calling for some kind of  military action to bring Iran in line.  How many in Congress of the Republicrat and Demmican variety disagree?  Who is pushing them to turn their concerns to a more egalitarian domestic environment?

 

ren, this boils down to what it takes to run an empire.  I agree with Chalmers Johnson on the point that empires cannot be democracies, and they are not really representative republics either.  Our Corporate Globalism adopts the Imperial administrative model because it fits the nature and scale of the operation.

Put another way, all that democracy makes it impossible to run an effective empire.  Instead of respecting that Constitutional check on top-down power over the Liberal theoretical nexus of power from the people, they rationalize the rules to adapt them to "reality.'

It is true that American political thinking at the time of the Constitution was not without its ambiguities, and there were those favoring a king, not just a strong executive.  Some advocated a theocracy, and we find contemprary Americans trying to make those minority opinions into the official one.

I think the UE is like that.  It is less in the Constitution than in the context and tradition around it, but the big change is the huge standing army.  Before that became established, the 2nd Amendment made perfect sense as the mode for national defense and "militia" was not how to protect the people from the government.  It also makes for a permanent Commander in Chief instead of the civilian President and the Congress.

It puts the money into play as well.  Corporate Capitalism is authoritarian, and what it creates and supports follows the pattern.  If we think about authority and power in these terms, the only way to manage a large military/economic corporation is to neutralize the Common Stock shareholders and empower the Board.

I get the point that they don't have to be right, just have to develop a body of "respected" or "established' thought.  The Revolutionary act was to establish the "power of the people" instead of the ruler.  The Constitution is designed to respect that fundamental source of power and legitimacy even if it contains a lot of concern and worry about what democracy might do.  I could agree with conservatives about the concern the Founders had for the "mob" or why they reserved the franchise for men of property.  But the idea that they were establishing an electoral monarchy where they took over for the missing king is hard to accept.  It is what the modern CEO would think was natural, however.

I agree to a point. However, here is the text of Article II, Section 2:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

My interpretation is that there is no support here for the UE. Yoo has his arguments and I accept none of them. I doubt you do. I see the UE as a corruption, not as "not simple".

I agree. However, I see no support for the UE. The constitution was written to avoid an emperor and so the three branches are co-equal. Yoo hasn't persuaded me to any degree. While it can be argued that my sticking to my argument is dogmatic, I would argue that in this discussion I use only the constitution and no ideology. Conservatives, such as Bruce Fein, agree with me, or I with him, whichever way it goes:

"It largely stems from their conception that the commander-in-chief power, the authority to wage war, includes anything the president thinks may be helpful to win. There are no limits. … Well, why do we have a Constitution anymore? When you declared war on international terrorism, did that mean the document becomes irrelevant, other than the commander-in-chief clause that absorbs everything else?"

I do admit that I doggedly stick to the fact that the constitution doesn't support the theory of the UE. I think essentially that you do too.

No hair splitting here, except that perhaps I see the American people as the source of the problem than those we elect. We put them in office with the understanding that they will behave as we expect them to.

jeff, for the most part, we agree.

Yoo's opinions are only one of many that have come out of a flow of presidents related to this theory. His are the most extreme and egregious to date, perhaps, and should be taken to court immediately.  I posted some stuff about that on another thread. Get Yoo and suddenly the whole court system opens up to the Bush Presidency.  If you happened to be dismayed at watching him make mush of John Stewart, clearly no legal expert, here's a hopeful article from a year ago to that effect: The Trial of John Yoo.

 

Yoo does not equal the UET, however, so you are making a mistake if you think he does.  It's much, much larger than that, and in many ways more ambiguous, thus more worrisome.  I really recommend you start by reading something by Chris Kelley.  His doctoral dissertation really gets into the issues.  That essay about rethinking pesidential power -- Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency -- is more condensed but sufficiently broad in covering some of the more significant ambiguities.

I have brought Bruce Feins ideas to my UET threads a number of times.  If you haven't seen it, his argument for impeachment on Bill Moyers is a blast from my earlier points on this thread, making a case that we missed a rare and important opportunity when Nancy Pelosi took impeachment off the table. He is one of those I meant when I said a number of us are running around with our hair on fire over this.

As I stated I think the outcome relies more on the nature of the electorate than the flakey arguments of UE theory proponents as they set up the political reality that either allows unconstitutional behavior or it doesn't. As far as I'm concerned, there is no support for the UE theory except for its proponents. We've suffered right-wing realities before, such as McCarthyism, and come out of it. However, coming out of "it" didn't relegate the right-wing to the dust bin of history and so there is always the potential that their far more belligerent nature will destroy our republic and create an authoritarian state because those people consider themselves exceptional and righteous and so they have the obligation to subjegate the heretics and destroy them if possible. There is no middle ground with the right-wing.

Oh, and thanks for that Kelly link.

You are welcome on the Kelley link.

Jeff, do you know anyone who teaches in a law school, or at a top university?

Ask them if they know about the Federalist Society and it's backing of the UET.  Ask them if they think it's "flaky."  I do know some, and I have asked.  The people I talk to have a different opinion.

Once again, these are the guys who started the Federalist Society:

The unitary executive: presidential power from Washington to Bush  By Steven G. Calabresi, Christopher S. Yoo, 2008, Yale University.

Ridicule them at your peril.

Nope, I know no one who teaches law. As far as I'm concerned the Federalists of today do not interpret the constitution in its original form, for example Scalia ignores the Ninth Amendment because he considers "The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.", which is interesting in that Madison added the Ninth Amendment to affirm unenumerated rights. I don't respect them as anything but threats.

I ridicule them because it's my duty, I consider them the treat to our republic. Hey, I'm only one citizen, and probably don't matter much in the bigger scheme of things. I can always hope that Obama nominates a good progressive who also sees Scalia for the right-wing ideologue that he is. Unfortunately, Federalists are a reality inour politics.

Now, let me re-emphasize the lead post: Next Justice to believe in the UET.

As I noted in this post:  OK, let me add to the initial

 Glenn Greenwald commented on the next likely candidate who would pass Obama's bipartisan requirements could be Elena Kagan.  Let's add another legal voice to that, Francis Boyle's:

Supreme Court Pick: Kagan "Loves" the Federalist Society  April 15th, 2010

Are we goose stepping to the right yet?

I noticed something in the "The unitary executive: presidential power from Washington to Bush" linked text. It starts out describing the UE as being one person acting as the Executive. It states that the foundation of the UE is that Article II is read "...as a grant to the president of the removal power and the power to direct executive branch subordinates"

This is a far cry from what Yoo argues as a branch that is above the Legislative and Judicial branches. As I undersatnd Yoo's interpretation, it has to do with an Executive authority to do whatever it wants without restriction from the other two branches, as Fein implies in his quote I posted. I'll have to reread a bunch of source now.

Edit addition: It appears that there are two schools of thought re: the UE: one is a reasonable reading of Article II, Section2 and the other, a corruption that In a sees the president as the Executive branch and holds unassailable power. For example, the corrupt interpretation sees the President as being able to do as he pleases even when the Legislature writes a law proscribing certain behavior because the President controls his underlings and the Legislature has no control over them. This allows the President to rewrite laws through his signing statements as he directs his staff as to how those laws are to be enforced or applied. I see no support for their interpretation except that they interpret the constitution their way.

I was reading some past posts on this topic and found this one fascinating.

 

Posted 28 February 2006 17:39 A three-legged stool with one leg that has outsized the others, the separation of powers does not exist: no "Trias Politica," just the "Unitary Executive" that has gobbled up the two others. There are no checks and balances: just one big gangly leg, and two ineffectual ones.

***

It's not that complicated; just think of "power grabbing" in a three legged stool. One of the legs (in this case the office of the President of the United States aka "the unitary executive") gets too big and the stool tips over, because the other two legs (the judicial branch and the legislative branch) have been turned into flopping appendages.

I came to this thread late myself, and it was interesting to read it through, looking for the central points, and finding that the personal asides just drop away when you're not in the thick of it.

Here's the summary I came up with:

Loganthor: congress abdicating its authority and responsibility to the executive branch

RedEagle: people like Alito have argued that since the President signs a bill, what he thinks about the bill is, in many ways, more important than what Congress originally intended. It's another new theory. As we all know in this modern world, new technology requires common sense interpretations of the law. But what this amounts to, in the real world, is it doesn't matter what Congress investigates, or even writes into law, as the executive branch may interpret a law any way it chooses, without any review OR PAPER TRAIL by a Judicial branch (Judges probably appointed by Bush's father anyway).

Ren: this president has been consciously invoking the Unitary Executive Theory into the signing of laws as a code word for a doctrine that favors unlimited executive power. By doing so, the president is adding to the laws that Congress passes his own prerogative to protect his office and its rights to ensure control over the executive branch functions. This also tends to create a kind of alternative legislative history.

Loganthor: In its strict definition, the unitary executive theory emphasizes the language of the Article II §1 of the Constitution of the United States:

"The executive power shall be vested in a President of the United States of America" (emphasis added)

Ren: How much of this excercising of the executive prerogative is actually intended by the Constitution, and how much is an "activist" president interpreting that the Constitution

Ren: The Constitution started out with a set of structures regarding how power was supposed to be spread around to avoid the problems of structural concentration because in a democracy we tend to want to structure our government to avoid the problem altogether. Probably the most dangerous position in a democracy for a power concentration is in the hands of an individual, thus it's important that the other powers points keep checks and balances active if the democracy is going to continue as such.

Loganthor: The Constitution expressly give the president broad powers. Our system is set up to be Three separate but equal branches of government. Has the president done anything that congress can’t do? Or the judicial? You claim he is exceeding his power. Just because the power hasn’t been used in this fashion before does not mean he is exceeding anything.

Barcalounger: Power will always want more power, it's the nature of the beast. It's our government, they serve us, and it's our job to keep them in check and deflate that balloon when it gets too full.

Loganthor: The “signing statement” everyone is all fired up about is effectively Post-it notes. That a majority of signing statements are simply presidential interpretation of legislation used to guide executive branch of government down the same thought line as the Whitehouse. A few of the Signing Statements challenge the legislation branch for encroaching upon presidential power. Also in my reading is that the base of Unitary Executive Authority derives from the fact that the president is the only official elected nationally. And as such carries equal weight or greater then congress.

Ren: not penciled in by Bush, they were prepared for him by a legal team headed by first Ashcroft and now Gonzales. Clinton, who did even more than Reagan and Bush's daddy to advance these tools is actually capable of writing such things, but he undoubtedly had a team too; he also, as a lawyer himself, is capable of reading and interpreting what his team writes.

Loganthor: UET in the application of the office president to control and manage every aspect of the executive office and departments both horizontal and vertical from the influences and miscommunication from outside forces. Ie: congress, judicial, special interest and stupid people.

suppersready: The analogy of representing our goverment as ONE big giant corporation with the president as the head is INCORRECT.

More clearly, it SHOULD be presented as THREE completely separate corporations with each providing a disticntly different important product.

And our constitution could be construed as an agreement spelling out the non competition clauses for that analogy.

Ren: So we have this tension between the one branch of government that represents our ancient adherence to the principles of authority in an individual, and another branch, the legislature, which represents the will of the people. That there should be a balance between those branches is apparent in the Constitution, thus if one branch exceeds its intended balance we may have some reason for concern.

I find Yoo's argument severely flawed, although he'd disagree. For example, he states that "The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President." but ignores the fact that it is Congress that has the authority to declare war, not the Executive. Also, the House is granted the power to impeach. Therefore, while the Executive is the sole Commander in chief, he is Commander in Chief at the discretion of the Legislature because it has the authority to declare war and provide funding and if the Executive acts badly, then the House can impeach and the Senate remove the Executive from office.

Yoo is wrong, regardless of his interpretation of the constitutional process, as in "make" versus "declare". If Congress has the power to declare war then it also has the power to undeclare war, or to not fund the war. Of course, that doesn't mean that certain conservatives don't agree with him, but it certainly doesn't mean that they're correct and can withstand scrutiny. For Yoo et al (those that subscribe to his theory of the UE) to be correct, the Executive would have had to be granted the authority to declare war and Congress not granted the authority to impeach and remove the Executive.

Slab, that post and that thread can be found at this link, as you know: Kate, 28 February 2006

A cautionary note about that thread.  Bill King and I had a disagreement over trolls and his self perceived position as an Authority the following fall, after the board sort of blew up, and a large number of people left, most of my friends, and went off to start their own board, which Ronald will be happy to tell you didn't work out.  Sue had given Bill as moderator the power to ban, and he banned me. The email excuse was I disrespected the board.  I was gone for a week before LisaP called it to Sue's attention and I was automatically reinstated. The thread vanished. I think Bill lost the power to ban at that point. Meanwhile I was able to log back in somehow and I was pissed so during that week I methodically began removing my posts from the board.  You'll notice on that thread that Loganthor is talking to me but there are no posts.  My first post doesn't begin until March 6. 

That's as far as I got I think before I was reinstated.  I removed my words from a lot of threads in that week.  I didn't figure the board deserved them, and after all, they were my work.  These are serious issues, but I've stopped trying to fight them.  I've adapted instead.  All I want to do now is just discuss things, and I can do that without having a flame war.

 

Many people find Yoo's arguments severely flawed, jeff.

I've had the chance to watch a few legal seminars recorded on mp3 or realplayer or some such.  They invite these Federalist Society guys to come and present their case.  You can kind of watch the snickering about what they say going on behind their backs.  Meanwhile these guys just keep on keepin' on.

I am not here to argue their case. I have a huge bibliography of arguments against it.  It violates everything I believe in about democracy.

I'm merely pointing out, on this thread, that this is a huge legal movement.  It's well orchestrated.  The Federalist Society gets a healthy share of corporate funding. 

I'm saying this is something dangerous, and it needs to be dealt with. 

It's like putitng the neocons in charge of national security.  You'll suddenly find your military is going to get bigger and your armed forces at the behest of their henchmen, a version of Cheney or Rumsfeld, will be going about the world telling people what to do at the point of a nuclear missle.

The UET is bigger and more comprehensive than Yoo.  Yoo can be beat in an argument, by other legal minds and by other theories.  But SIX Supreme Court Judges making a majority ruling are a different matter.

That's the point of this thread.

What will Congress do if Elena Kagan is the nominee?  Elena Kagan makes Republicans feel at ease.  How does that relate to this Tea Party movement everyone is getting so revved up about now?  How does that relate to the Oath Keepers who want to protect the Constitution?

I was there ren.

I thought Bill still had moderator power well after that, but I could be wrong. To me, Bill never objected to a differing political opinion. It was more a chance to look at your own views. We had many a discussion but never any real problems.....even though I'm an evil neocon.

LisaP was always one of my favorites.

Moderators didn't and generally don't have the power to ban on message boards.  It's a switch you have to be able to give a yes to if you are an administrator.  Default is generally no.  I know because I have been an administrator. 

Bill got the ban power for a brief period when Sue lost all her other moderators when a lot of members left in the fall of 2006, which included Usha, whose book Thom endorsed, and Andger.  I was in the middle of it all.  Andger was probably the best moderator they ever had.  He just moderated.  Kept his views out of it most of the time.  Moderators had the power to edit, was all. And Bill used that a few times in ways that pissed me off but I got over it. 

Bill lost his moderatorship about two boards ago.  I haven't seen much of him since. Bill hated Chris and he associated Chris with me, I guess.  Bill and I never had much to say to each other.  I finally found out how he really felt in that exchange, which has been "disappeared" as they were wont to do with such things at that time. 

According to that board you joined as "Slabmaster" on September 6, 2006, right about the time the whole board went through its major turmoil.  I don't know if you were there before that under another name, but I tend to doubt it.

Lisa P hated Ronald.  She was the one who found my stuff on his site, and found the psychological profile he made up about me.  I think she was the one who named him "Slitherford" at the "Nos" board Andger and Miles started.

I agree.

I agree with two caveats, and that is a) that the SCOTUS can overrule itself and (b) Congress can act to provide a counterweight to a badly behaving Executive.

Kagan would be a poor choice. However, it was Kennedy who wrote the opinion in Lawrence v Texas that overruled a previous decision. The Tea Party probably wouldn't accept Yoo's interpretation of the UE when a black guy's the Executive, when it's a white male Protestant then it may be acceptable. I could be wrong and would love to be proven so. Consider my statement prejudice until I am. Then if I'm not proven wrong, then you can consider it a well thought out guess.

From what I see at their site, they didn't support Bush's abuse and wouldn't others'. Most don't seem to accept Yoo's interpretation of the constitution that leads to his vision of the UE. They more than likely would accept the rational view of the UE though, as the constitution places the president as the Executive. Peruse their site and let me know if you find something I didn't.

I don't disagree with the possibilities you call to mind.  Again, that's not the issue.  Obviously if one theory can take us into goose stepping fascism something can be done to reverse it.

One of the big problems we have explored in the UET threads was how reluctant Congress has been to assert its authority.  There are a variety of complicated factors involved.  A lot of them are purely political in nature.  You cannot simply hope that the Constitution can save the day if the political winds are poisoned with fear, stupidity and blind hatred whipped up by a bunch of hate mongers in the "free speech" media.

Supremes overruling other decisions is a time related issue. If they finally get around to correcting something, like the 1886 ruling that inadvertently gave corporations the same rites as natural persons, look at the damage that can occur in the interrum.  Look at the damage of the last ten years.  Look at what Bush did to the world in eight years.  Think of the long term potential for blow back in all this while we wait for the Supremes to fix the mistakes of the previous Supremes. 

As I've argued in a number of places and so have many others, this nation is moving inexoribaly to the right.  In that link I quoted, I didn't quote the next paragraph.

 Supreme Court Pick: Kagan "Loves" the Federalist Society  April 15th, 2010

I don't think the answer I need will be found at their site.  The answer I want would be related to interpretation, which is seldom published.  Do they subscribe to formalist theory, like originalism or strict constructionism, or some other?  If they say "formalist" and they actually are going to try to make sense of themselves, my guess is they will end up agreeing with the Federalist Society for the most part.  But this would take some work talking to them to find out.

Here's their law firm, it appears, this would be a good place to do some research: The Law Offices of David P. Sheldon

 

 

Interesting. I didn't know Bill had a hard on for Chris. I had my go arounds with Bill but it never came to blows. I just had an opposing view re: politics and received the same shit I get now. Oh well. As much as Chris and I have disagreed about some political stuff, I actually admire him more than most liberals. That came after the posturing and threats of course. I look back on that as funny, although at one point it would have been better that we'd not met in person. Silly internet BS really. After all that grandstanding, I agreed with more of what he said than not and miss his input on these boards. He said what he felt and damn the consequences, and I relate to that. 

I wasn't here (there) under another name. I just missed Andger and Usha. Sawdust spoke very highly of them and I'd communicated with them breifly on the NOS board. Seemed like good folk. They're married and have a kid as I remember, but I never had the pleasure to talk much to them.  Miles....is a different story. That bizarro was drama and obsession like I'd never really seen. So weird it can be addicting to watch. He sure liked me. It's strange to have someone so fixated on you that knows nothing about you. Creepy, but curious.

LisaP joined the Nugent board for a short term in 2006 I believe, but I think she tired of it. Mostly talk of hunting, fishing, etc.... I appreciated her willingness to look at the conservative viewpoint with an open mind. She was well accepted there as is anyone. She made good points and offered great debate. Made some of the stallwart conservatives back up the assertions of being "right". I found it interesting and admire her greatly.   

IMO,  it is a huge loss to this board to lose personalities like Sawdust, DaveM, LisaP, ChrisD, Bill, Loganthor, Ronald, Andger and Usha, among others. The groupthink thing is lacking.  

The conundrum of democracy is that the people have the authority to lose it, and the strain of conservatism that is authoritarian wants to implement fascism because, as Mussolini said of it:

"Fascism denies that the majority, by the simple fact that it is a majority, can direct human society; it denies that numbers alone can govern by means of a periodical consultation, and it affirms the immutable, beneficial, and fruitful inequality of mankind, which can never be permanently leveled through the mere operation of a mechanical process such as universal suffrage"

I see Yoo and those that agree with his theory of the UE as not believing in democracy, as embodied by the triumverate, in general, and the Legislature, inspecific, created by the constitution because they encumber the Executive. Therefore, their view of the constitution is tainted by their inherent nature that is authoritarian. Their argument is strong for those Americans who also see democracy a threat to society, for example with regards to gay marriage threatening the social order, and so they support an authoritarian movement precisely because it may constrain progressive threats.

I see the threat to our democracy as purely political, simply because everything we do is political. However, the only thing standing in the way is the wording of the constitution that refutes their interpretation. Therefore, the only hope may be the constitution.

This is where it gets tricky.  Interpretation turns out to be, in the end, political, even though the rationalists look at it as an objective, scholarly affair.  It's political because interpretation involves theory and choice about words and meaning. And so you get the conundrum.  "The only hope may be the constitution" but the constitution must be interpreted.  And the experts come out of a number of different interpretation philosophies about all that.

So if the next interpreter of the law appointed to the Supreme Court happens to fancy the formalist theories of interpretation behind the Unitary Executive Theory, then with six in general agreement, the interpretation moves more firmly in a certain direction and the balance is weighted to keep it going that way.  So we get interpretations like the one that ends up saying the Corporations have the right to free speech and money is an instrument of free speech.  All neat and tidy according to their interpretation of the Constitution, and all the laws it justifies, all the precedents they agree with.

I wouldn't use the word "expert" except in the context that they may be experts in knowing what they think.

And yet a future court can overrule a ruling based on just such an interpretation or Congress can impeach to rebalance power! In effect, this is a circular argument until the constitution is either amended to agree with such an interpretation or thrown out altogether, which are always possibilities.

That enough people voted for righteous and corporatist officials to date and so pushed the United States so far right gives me little hope, but there is always hope.