Conservative Lawyers Defend Holder (and the Unitary Executive)

Progressives, outraged by the Bush administration's conduct of the "war on terror," have come to hate the idea that the President is a "unitary executive," and for good reason: this idea was abused by the Reagan Administration to attack the very idea of "independent" government agencies then abused again by the Bush administration in support of the use of "enhanced" interrogation and surveillance techniques. But I'm guessing this letter by a number of prominent conservative lawyers in favor of the confirmation of Attorney General nominee Eric Holder will be just the first of many developments over the next 4 years that make progressives rethink their unbending opposition to the idea of a strong, even dare I say, unitary, President Obama.

The letter, signed by 10 conservatives including former Bush I Attorney General William Barr, is devoted mainly to a glowing account of Holder's stellar credentials for the position. But the letter also defends Holder on the issue that forms the heart of the case Republican Senators such as Arlen Specter are trying to make against Holder: President Clinton's pardon of Marc Rich. Here's what the letter says: "The short answer to any and all of these questions is that the power to issue a Presidential Pardon is a clear plenary power of any President. It is his or hers alone to execute and justify. A Presidential pardon is then unreviewable. Virtually no one disputes that Eric was an outstanding Deputy Attorney General in every respect, President Clinton's pardons notwithstanding."

This defense of Holder is a classic articulation of the idea that the President is a unitary executive. It also happens to be essentially right. It is a historical fact that our Constitution establishes a "unitary" executive: the executive power is vested in the President, not, for example, a cabinet or a privy council. The abuse of this basic principle has come where conservatives such as Dick Cheney and John Yoo have made unsupportable arguments about how the President's "unitary" authority over the executive branch somehow trumps explicit grants of congressional power. The President is not a King -- he is subject to the Rule of Law - but the Constitution does give the President broad authority to run the executive branch. And the pardon is one of the President's most unfettered powers. One can fairly criticize Eric Holder for not doing more to stop President Clinton from pardoning Marc Rich -- Holder has chastised himself -- but it's difficult (and more than a little hypocritical) for conservatives, who have spent decades arguing about the unique powers of the President, to place the blame for the Rich pardon at Holder's feet.

Progressives need not restrain their critique of the Bush administration's abuse of power in order to recognize the basic fact of the President's broad control over the executive branch. And progressives who like Obama's policy leanings, but may not trust all the members of the "team of rivals" he is assembling around him, may come to like this more than they realize today.

Comments

[MrLion]

"Unitary executive" is second only to "neo-conservatism" on the list of Most Misunderstood Bush-Era Terms. Many people confuse it with the Bush administration's claim of sweeping Commander-in-Chief powers in wartime: a claim that has given us Guantanamo, the torture memo, and the so-called Terrorist Surveillance Program--an even more serious problem than the unitary executive theory.

The good news is that Dawn Johnsen, President-Elect Obama's choice to head the Office of Legal Counsel, is an outspoken critic of the Bush administration's Executive Branch power grab. Her law review articles include "What's a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration's Abuses"; and "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power."

[billstewart]

The Executive Branch's job is to execute the laws made by Congress. The President not only isn't a Unitary Executive - he doesn't even get to control what weapons system the Pentagon builds, even though he's in charge of fighting the wars that Congress declares. He's not the Decider, even though Congress has wimped out and let Presidents decide a lot over the last few decades.
Certainly the authors of the Federalist Papers didn't believe in a Unitary Executive - they'd just overthrown one. Opposition to Unitary Executives is hardly a narrow Progressive opinion; you'd find a broad spectrum of conservatives such as Barry Goldwater and Bill Buckley who'd have been appalled by the idea that anybody but a few monarchists wanted such a thing.

There are some jobs the President has, and pardoning people is one of them, as long as he doesn't get caught taking bribes. But is it really unreviewable? Gerald Ford got away with pardoning Nixon for all his sins without enumerating them, but it's not clear that whether Bush were to pardon all his cronies for their support of Gitmo, Abu Ghraib, illegal wiretaps, corruption in Iraq, and pardon himself for everything he might have done, the Supreme Court might get a look at the case. And while we were happy to see Nixon gone, Bush has done far more systematic damage to the Constitution.

[Skepticat]

Unfortunately presidents don't need anyone's approval to pardon anybody - but this has nothing to do with the neo-con "unitary executive" model. The foolish right to pardon without review was a product of the framers of the constitution who alas were not imaginative enough to envision how seriously it could be abused. Since members of the cabinet have no ability to prevent it they shouldn't be held responsible unless the partricular person was actively promoting abuse of the pardoning system.

[Senzasord]

The concept of the unitary executive is not defensible. It is not in the Constitution or any meaningful precedent. It represents a clear and present danger to our republic and anyone who espouses it veers close to treason.

Presidential pardons may be granted for crimes against the United States. To get a pardon a crime must have been committed and you must have been convicted of it. Blanket pardons for whatever you may have thought about doing are not proper. The Gerald Ford pardon precedent was wrong and needs to be overturned.

[LeftRight]

First, the term unitary executive has come to mean what raygun and the shrub have done with it. Therefore to claim that a President who runs the executive branch while obeying the law is a unitary executive means that you don't understand the connotations. He IS the executive, but the executive is limited.

Second, in the case of the pardon, it's one of the very few powers that the President has which is explicitly stated in the Constitution, and as such, is absolute!

Third, I understand why the conservatives are trying to lay it at Holder's feet, remember, they are under the impression that Rove and Libby and EVERYONE who works for the President is subject to Presidential Privilege. That means that they are ALL the President! In other words, they aren't for an ACTUAL unitary executive, they are for a single branch of govt being supreme with the others simply having a rubberstamp function.