What Would James Madison Do?
At the time of this writing, Samuel Alito has not been confirmed to the Supreme Court. But I'm going with conventional wisdom on this one and assume he has by now, or will soon, join Chief Justice John Roberts on the big SC, giving conservatives like my friend out in the state of Washington what they really wanted out of W. -- an ultra-conservative judiciary branch that will keep in place the facade of American imperial power, and its domestic prerogatives, for at least the next few decades.
Assuming the confirmation of Alito, whose mild-mannered public persona is admirable, here's a phrase we all need to get educated on: ''unitary executive.'' In his testimony before the Senate Judiciary Committee last week, Alito affirmed his support of the conservative doctrine, which is fancy legal talk for giving the president more power.
A bit more technically speaking, they're talking about the use of ''presidential signing statements,'' which are the president's interpretation of whether or not a law, or certain provisions of it, are constitutional or not. Think about President Bush's absolute certainty in his unilateral decision that spying on U.S. citizens is perfectly fine if he says so. Or, consider his maneuvering around the McCain-inspired law to ban the use of torture.
The other day I called up Miami University (Ohio) associate professor Christopher Kelley, a leading authority on bill-signing statements and the theory of unitary executive. By his count, as reported in the Wall Street Journal, Bush has cited the doctrine 110 times to date. Clinton never used it, and Bush I evoked it only six times; Reagan, once.
Kelley did say that although Clinton never referred specifically to the concept of unitary executive -- Clinton called it ''enhanced responsibility'' -- his ''administration behaved in much the same way, with respect to continuing the practices of the Reagan and Bush administrations of both negating provisions of law that the president determines to be unconstitutional and to supervise the administration agencies in such a way that when those agencies interpret the bill, they interpret it the way the president does.''
Alito is part of the intellectual camp of conservatives who sought to enhance presidential powers after Watergate, which, in their minds, had been unjustifiably weakened, ceding too much authority to Congress, and thus upsetting the Founders' notion of the separation of powers.
This is an old debate -- one that Alexander Hamilton and James Madison had. And ever since, there are those who argue that the office of the president should be endowed with what Madison called ''auxiliary firmness and weight'' to oppose Congress.
But Madison had a change of heart. ''At least through 1791, (Madison) remained firmly convinced that legislative encroachments would pose the greatest danger to constitutional equilibrium. But after 1793, the growing prominence of questions of foreign policy led him to a new conclusion,'' Stanford University historian Jack Rakove writes in his Pulitzer-prize winning book Original Meanings.
The conclusion that Madison came to, Rakove reminds us, was ''that it was the executive that wielded the greatest degree of power and initiative, and that the powers of the House had accordingly to be extended.''
Now, if Madison concluded that the executive branch wielded the greatest power in the foreign policy environment of 1793, shouldn't the even more prominent questions of foreign policy today inspire a Madisonian re-evaluation of the doctrine of unitary executive?
''Most of us haven't been paying any attention to the details about how the president protects his office,'' Kelley said. ''It behooves Congress to step up its monitoring of the executive branch because the longer that the president refuses to execute provisions of law or what have you, sometime down the road, should Congress challenge it, the courts are going to look at past behavior and see the non-response.''