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August 05, 2007

Unitary executive doctrine (for American legalo-politico-geeks only)

There is alot of hullabaloo, palaver, mishegoss, or whatever about the so-called unitary executive doctrine. Despite my minimal government libertarian orientation, both in and out of bed, and a loss of just about all faith in the Bush folks, I cannot get the ruckus. The President has all the executive power except in those areas limited by the Constitution. I still don't get the fuss over the attorney firings, he can hire whomever he wants and fire them. I think people are mixing this up with an unnamed idea that sort of says that the sovereign powers of the nation devolve onto the executive in the absence of Constitutional limits or in times that the Consitution is impracticable to enforce. This usually boils down to saying that in areas of foreign policy, and border control, the President cannot be limited. This may be Addingtonism, but it shouldn't be mixed up with the President's right to control and keep separate the Executive Branch.

Posted by Matthew Hogan at August 5, 2007 10:54 PM
Filed Under: Egghead Stuff


Comments

The attourney one's easy to explain. While it falls within the executive's powers to hire'n'fire USA attourneys, it does not allow them to do so in order to tilt the board in favour of the GOP and against the Dems, since the law is meant to apply equally to all, regardless of party affiliation. Naturally. And there are oodles of circumstantial evidence that that's what they did, even with what little evidence the WH and RNC have deigned to release.

Also, the firings happened midterm, which is highly unusual, and happened to highly competent US attys, and no explanations as to why have been brought up by the DoJ. Looks like a slam dunk to me.

Posted by: Klaus [TypeKey Profile Page] at August 6, 2007 02:27 AM

If the President wants to fill up those offices with GOPers, that should be his right. It may be obnoxious or bad form, or unwise, but he is the chief executive and he has a right to hire and fire his favorites. Tilt in favor of one party, that's why he got nominated. Now there may be some statutory reason restricting his power of appointment but I dont think so.

Posted by: matthew hogan at August 6, 2007 09:04 AM

No, not true. The interpretation and implementation of the law is supposed to be non-partisan, otherwise it's obstruction of justice. You don't get away with...let me rephrase that, you're not supposed to get away with committing crimes just because you are a ranking member of the Republican Party. Nor is a US atty supposed to do pursue political opponents of the GOP upon the request of GOP members of the executive branch.

It's really at the very heart of the idea of what law is, that's why it's a bit hard to explain sometimes. Like explaining what "colour" or "sight" is, that way.

Posted by: Klaus [TypeKey Profile Page] at August 6, 2007 01:26 PM

But yes, it is entirely normal and legal for new presidents to fire all US attys at the start of their first term, and to make them all of his own party. But even so, they and the DoJ are to pursue their duties and uphold the law without regard of their party loyalties. Seems they didn't.

Posted by: Klaus [TypeKey Profile Page] at August 6, 2007 01:34 PM

If the ruckus is about falsifying their records or prosecuting on bogus charges for partisan reasons, that I understand, but it is not illegal or unethical wrongdoing for a President to simply stack the deck in a partisan fashion. That's their perogative. IT would be illegal or unethical to prosecute or slander someone's record, however.

Why cannot the US atty general pursue appointments and dismiss based on partisan membership or ideological kinship? That's how judges are nominated, ambassadors are nominated. More or less openly so. It should be even more allowed INSIDE the executive branch.

It may be bad policy -- I dont like it myself -- but where is the abuse, UNLESS of course it somehow invovles slandering a personnel record or inciting bogus prosecutions.

It's almost like the adultery in Clinton's impeachment. That wasnt the impeachable offense (perjury was), probably not even a crime under non-military federal law, same as here; there may be a crime of obstruction, perjury, or other manipulations and abuses, but merely partisanising the officials should not be an offense against law or ethics. But liket he adultery in the Clinton episode that's what everyone astonishingly seems upset about as hte chief malfeasance.

Posted by: matthew hogan at August 6, 2007 04:13 PM

If the ruckus is about ... prosecuting on bogus charges for partisan reasons

Bingo, particularly with regard to Karl Rove's obsession with voter fraud. Also about stopping valid charges for partisan reasons. Also about leaning on US attys to launch investigations of Dem candidates right before elections, and firing them if they don't.

Why cannot the US atty general pursue appointments and dismiss based on partisan membership or ideological kinship?

Because as the chief law enforcement officer his duty is first and foremost to uphold the law. So firing highly competent US attys (and breaking off important investigations in the process) is very questionable, especially when the DoJ so far has been unable to give a reason for doing so. Smoke all around.

Posted by: Klaus [TypeKey Profile Page] at August 6, 2007 05:53 PM

In an ideal world, I think the system would work something like this: The President certainly holds full executive power, and has the right to hire or fire anyone in the executive branch for any reason he pleases. At the same time, if the President hires or fires people in a way that prevents the laws from being faithfully executed, Congress has the right and the obligation to impeach the President.

Unfortunately, we're getting the first thing without getting the second.

Posted by: ML at August 10, 2007 06:45 AM

The US system is built on compromise. The senate has the power to block any nominee it disagrees with, a minority can even filibuster and uphold the process in numerous ways, which forces the president to find a compromise candidate. But the Dems in the minority under Bush didn't use that power, the predictable result being an unchecked, rampant executive. So while the system may be sound, it's no good if the legislators are ignorant of its intricacies, or are steamrolled by rhetoric. Dem spinelessness has definitely been complicit in the excesses of power the past six years. But again, that's the curse of the two-party system, you can't really punish Dems for that.

Posted by: Klaus [TypeKey Profile Page] at August 10, 2007 11:42 AM

Well, if the US Constitution is to be read as allowing the President to designate whomever he sees fit as US attorneys, and to pack the Department of Justice with party apparatchiks, then the US Constitution is seriously f... up.

In most European countries, such appointments are supposed to be apolitical, and are often left to an independent judiciary body. Of course, this doesn't prevent the executive to appoint politically trustworthy people, but at least it prevents the grossest excesses.

Posted by: Ibn Kafka at August 20, 2007 08:57 AM

then the US Constitution is seriously f... up.

Yes. Yes it is. But all political systems have some degree of conventional law (the British in particular). The American system was doing fine until the Bush administration decided to simply not uphold those conventions, as, for example, the one about weighing competence over party affiliations in official appointees. If a person as unscrupulous and myopic as Bush would ever become British PM, UK wouldn't stand a chance.

Posted by: Klaus [TypeKey Profile Page] at August 21, 2007 05:43 AM

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