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The Unitary Article II Executive and the Earl of Strafford

Orin Kerr writes:

Orin Kerr on the Unitary Executive: Article II and the Notice Question: It seems to me that the Bush Administration's approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration's broad view of Article II powers. Most criticism of the Administration's approach has focused on (1). I'm no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).

Imagine the Administration changed course on (2), and was very explicit about its interpretation of Article II.... Congress could respond.... Congress could cut funding to the Administration's efforts that go beyond Congress's prohibitions. The details of this may be tricky, but the basic idea is sound: When the feedback loop exists, Constitutional checks and balances can adjust to the President's vision of Article II powers.... The problem with Presidential signing statements in their current practice is that they announce that the President will follow a constitutional vision that no one outside the Executive Branch understands. Take the McCain Amendment. Here is the Presidential signing statement that accompanied it:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Does anyone actually know what that means? We can read John Yoo's scholarship and take some guesses... but... we don't really know. And that's the difficulty: Less that the Administration takes a strong view of Article II than that it won't disclose precisely what that strong view is. Without the feedback loop, it's hard for the other branches to respond.

Anyway, this is an oversimplified take on a complex topic that is outside my area of expertise. But I thought I would flag the issue, offer a tentative take, and open it up for comments. As always, civil and respectiful comments only.

I think that the extremely sharp Orin Kerr is wrong. We do know what the signing statement means. It means that George W. Bush will do whatever he wants, notwithstanding whatever laws or restrictions on funding Congress "passes" and Bush signs. It means that George W. Bush won't tell the Congress what he is doing unless he wants to. And anybody who doesn't like what the Bush administration does should shut up. Bush can hold at least 2/3 of the Republican senators in any Senate impeachment trial.

Whether the Bush administration will stick to this maximalist interpretation after November is unclear. I think it will--that in 2007 we will see a lot of congressional subpoenas denied, a lot of executive privilege asserted, a lot of laws ignored, and some Supreme Court decisions ignored or evaded. I don't think the Congress will impeach and remove from office. And Congress has no other weapon it can use.

Perhaps the constitutional prohibition on Bills of Attainder a la Strafford was a mistake. Things would be very different now if McCain and Hatch could threaten to attaint those servants of the president who are now making McCain's anti-torture amendment a dead letter.

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