Voting Against Monarchy: The Supreme Court, the Unitary Presidency, and the Danger to Democracy

With the economy collapsing, ice caps melting, health care costs surging, and American troops in harm's way, it may be hard to remember there is another huge issue in this election campaign - the future of the constitutional presidency itself.

Depending on the specific legal issue presented, the Supreme Court is somewhere between zero and one vote away from ratifying an essentially monarchical view of executive power as a proper reading of the Constitution.

Many Americans are already aware of a part of this danger. It has only been by a single vote that the Supreme Court has preserved habeas corpus review for the internees at Guantanamo and demanded a procedure for adjudicating their rights that satisfies the rule of law.

What is far less understood, and arguably more dangerous, is the far right's theory of "the unitary presidency." This is the theory that the President is constitutionally in charge of exercising any or all policy making authority that Congress may delegate to anyone within the executive branch.

In other words, Congress enacts laws that authorize the Administrator of the Environmental Protection Agency to regulate pollution. Under unitary executive theory, however, what the EPA does with its authority is entirely up to the President.

Congress enacts laws that authorize the Center for Disease Control to publish pamphlets on how the public can best protect itself from the further transmission of HIV/AIDS. Under unitary executive theory, however, the President may, if he chooses, write those pamphlets himself.

In case you are wondering if the Bush Administration really took this idea seriously, it is noteworthy that, between 2001 and 2006, 346 of the constitutional objections Bush articulated in his infamous signing statements were based on Congress's alleged interference with the President's control over the "unitary executive."

Under unitary executive theory, all of our independent regulatory agencies - the Federal Trade Commission, the National Labor Relations Board, the Consumer Products Safety Commission, and on and on - are unconstitutional. They are unconstitutional because Congress does not allow members of these Commissions to be fired for disagreeing with the President on the implementation of policy.

There are three overarching reasons why the unitary executive theory - utterly unsupported by any decent reading of the Constitution - is so dangerous.

First, it allows the President to ignore agency expertise altogether. If a scientific agency wants to warn of global climate change, unitary executive theory allows the President to have his political staff censor the science. If a statistical agency wants to warn of an increase in American poverty, the President could demand that the categories be re-labeled.

Second, it allows the President to undermine public participation in agency decision making. Under the 1946 Administrative Procedure Act, agencies that propose administrative rules must ordinarily create opportunities for public input. To some extent, they must take that input into account in formulating their final rules. Under the unitary executive theory, however, the only input that really counts comes from the White House. (And, of course, because administration subordinates know this, the chances for vigorous dissent and deliberation within the executive branch itself shrink dramatically.)

Finally, it potentially eliminates government transparency. Supporters of the unitary executive are invariably enthusiasts for executive privilege. Under unitary executive theory, the President may not only tell agencies what to do, he may keep his directives secret and shield from scrutiny any third-party influence that might have led the President to his particular stance. That was exactly the Administration's position on the Cheney National Energy Policy Development Group.

Right now, the key judicial precedent in opposition to unitary executive theory is the Supreme Court's 1988 decision in Morrison v. Olson, which upheld the constitutionality of independent prosecutors. That was a 7-1 decision with Justice Scalia in dissent and Justice Kennedy in recusal. The addition to the Court since 1988 of Chief Justice Roberts and Justices Thomas and Alito could produce an overruling of Morrison should the right case present itself. The result would be a disaster for the American practice of constitutional democracy.

For those who share my view, making sure Barack Obama gets to fill any imminent vacancies on the Supreme Court is an absolute imperative.

In short, the future of the presidency stands as another critical, but too often overlooked basis for preferring an Obama Administration. I hope to post twice more before the election on two other very big issues that point in the same direction - the future of democracy and the future of American society.

Follow Peter M. Shane on Twitter: www.twitter.com/petermshane

Comments

[Peter M. Shane - Huffpost Blogger]

I want to thank all of the commenters (thus far!) for such supportive reactions. Statistically, we're all pretty likely to be in the camp that thinks public policy in the United States has gone horribly off track since 1981 (with something of a respite in the 1990s). If any of us got to be President, it would surely be a temptation to push every button and pull every lever in our control to put a new progressive agenda in place. But I find myself in intense agreement with the comment by "MajorKong." An Imperial Presidency of the Left would not be a blow for democracy. I am hoping (and will write about the hope) that the Obama Administration will be an occasion for reforms in the structures and processes through which Americans, from towns and cities up through every level of government, get to come together to control our shared destiny. I say, "The sooner, the better," when it comes to universal health care, tax reform, ending the war, and so on. But what's more important than the changes in the first 100 days will be the foundation laid for the next 100 years of American democracy.

[DuPageDem]

Thanks for addressing the imperial presidency. This is the single most important issue in the election -- everything else stems from it. It's a real disappointment neither candidate has substantially addressed it. Perhaps they like the idea of unlimited power, as long as it's theirs.

[MajorKong]

I like Obama. I still don't want him, as President, to have the kind of power claimed by the Bush administration. It's dangerous for one person to have that much power, even if it's somebody you like.

Power corrupts, and absolute power would be really, really cool.

[GoldStarMom]

I honestly think that Obama/Biden, if (when) elected would IMMEDIATELY begin removing all the roadblocks to democracy that Bush/Cheney Inc. have implemented. I KNOW McCain/Palin wouldn't.

[Oregon Ivy]

Thank you very much for s c a r ing the cr@p out of me even more than I already am that Obama won't win.

Now I'll need to up the Xanax to 2 per night in order to be able to sleep at all.

And I can feel the a c id burning a hole in the lining of my stomach as I type.....

[MajorKong]

OK Republicans, try to think about it this way. Imagine the Democrat you HATE the most. Ted Kennedy? Hillary? Now imagine that Democrat as President with all the powers claimed by the Bush administration at their disposal.

If that doesn't scare you I don't know what will.

[BLinCincinnati]

Hah! That's the exact argument I made against a Republican friend who thought it was perfectly fine for GWB or McCain to have those powers. I told him... "Ok, and how will you feel if Hillary Clinton becomes president in 2016 and has absolute control to do what ever she wants?"

The look on his face was priceless.

[LeftRight]

Does anybody remember the last time that we had a unitary executive?? His name was KING GEORGE, and we rebelled against him!!!

[philistine]

Until the financial system collapse blew up on us, I thought that the future composition of the federal court system was the most important issue related to the upcoming election. I think I still believe that, but that idea now has some serious competition.

[Wender]

Thank you, You are the first person to address the biggest problem facing this country.

Bush/Cheney has made the country something other than a country based on the law. The Constitution has been ignored. We are no longer a democracy if the right wingers steal another election.
The law of Posse Comitatus is broken , we torture people and ignore international law, we ignore law that dates back to the Magna Charta. Bush has to be impeached to destroy all the lawless precendents established over the last 8 years. Read Fein's " Constitutional Peril" It is a must read by every literate American.

Please vote for Obama (who is a Constitutional scholar)

[ToonMoene]

and, of course, it doesn't help to have a vice-presidential candidate who thinks that "Executive Branch" relates to having "executive experience" instead of one of the "Trias Politica".

[DixieMelody]

Appointing members of the Supreme Court "for life" is just outrageous.