THE BLOG
10/27/2008 02:04 pm ET | Updated May 25, 2011

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.