Talk:Unitary executive theory/Archive 3

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Comment on RfC II

Thank you for making an effort to give a short description of the situation.

If I now understand it correctly, the issue is: "Whether the Bush administration considers the U.S. president eligible to initiate war regardless of any laws -- or whether this is just something critics of the Bush administration state. Further, it is debated which view the references support."

I'll write this into the RfC page if you agree it is an accurate description of the situation. /Fred-Chess 18:14, 15 March 2006 (UTC)

That's simplified, of course, :), but IMHO fair. Thanks. TheronJ 19:35, 15 March 2006 (UTC)

Incorrect, the debate is whether inserting the view of critics (that the UET could be about broad war powers) is allowed. That is all! Never did I say that this is the Bush administration's position. It is what critics assert UET might be! The dispute is about editors claiming there is no basis for such criticism (original research on my part some insist), hence the entire debate about the references which they claim do not support any criticism, or are inadmissible. Nomen Nescio 00:52, 16 March 2006 (UTC)

Ok, this is my view on this: Basically I think the information should be present in the article, but it needs to be better formulated so that it becomes clear who states what. And having twelve references appears to be overkill. / Fred-Chess 16:11, 18 March 2006 (UTC)

Thank you for trying to mediate. Of course the criticism is allowed, but some editors do not understand wikipedia policy. As to better formulating sentences I am looking forward to suggestions, which I repeatedly asked for however never got since some editors do not want a debate but simply insist on deleting the entire criticism part, period. Feel free to show what sentences could be improved, thank you again. Nomen Nescio 09:43, 21 March 2006 (UTC)

As I've discussed before, I've never deleted your sentence. I deleted some of your references and adjusted the tone of your sentence, but you reverted all my changes back wholesale. I then debated you at length on this page, and you accused me of engaging in ad hominem attacks, without being able to name a single one. On top of all that, you keep claiming that "editors" don't allow criticism. I assume you're editing in good faith, but I've explained myself to you several times, and I don't seem to be able to communicate my point, because every time you discuss this issue, you ignore my points. As stated, I'm assuming good faith, but my inability to explain myself to you after several attempts has exhausted me, and I have given up on this page for the time being. TheronJ 14:35, 21 March 2006 (UTC)

Sadly you fail to understand that what I have been trying to do for the past million edits is to get beyond that initial misunderstanding (you once again mysteriously refer to) and start anew with a discussion on how to improve the current wording into a more acceptable form for others. Just tell me what sentence you think needs rewording, that's all, and please let's not continue the original debate (which is entirely my fault for reacting instinctively to what I thought was deleting criticism) which only results in us getting mutual annoyed.

As to my comments regarding "some editors" I am not talking about you. Contrary to what you think I believe that you are the only contributor that is willing to seriously debate the subject. Any comment I made towards editors suggesting they are trying to censor this article was not aimed at you. I am sorry you think it was. Nomen Nescio 16:11, 21 March 2006 (UTC)

TheronJ, thank you for trying to help with this article. Unfortunately, as you appear to now understand, Nescio's "accusations" and knee-jerk reversions are what drives editors away from trying to actually improve the article. (There's a very good example in an old talk page, but it seems to be lost, where it tooks days of arguing and a series of revert wars to get 18th century congressional actions out of a section on the Nixon administration). With all the talk about "attacks" and "censorship", there doesn't seem to be much concern for quality or readability. --Ajdz 17:12, 21 March 2006 (UTC)

I would like to thank Ajdz for trying to improve this article. His suggestions as to which sentences could use rewording are noteworthy, as well as his capability to resist engaging in personal attacks as so many others would have done.

Now stop these personal attacks and make useful suggestions or I will ask an admin to look at your repeated misbehaviour and unwillingness to discuss this article. Nomen Nescio 01:53, 22 March 2006 (UTC)

Cut the threats, they don't make you look good. --Ajdz 03:47, 22 March 2006 (UTC)

Sigh, and sigh again .......... Nomen Nescio 10:13, 22 March 2006 (UTC)

That would be preferable. --Ajdz 03:15, 23 March 2006 (UTC)

FDR

The case of the German spies landed on Long Island and jailed or shot on executive authority appears to be missing. Septentrionalis 04:53, 27 March 2006 (UTC)

Nixon

Nixon did order Watergate. The evidence on this was published long ago; the fact he was not convicted has no bearing, since it is fully explained by the pardon. Further unexplained reversions on this subject approach vandalism. Septentrionalis 06:31, 27 March 2006 (UTC)

No unexplained edits on this subject were made whatsoever.

The text of the pardon is available here

Ford makes no determination of guilt in his pardon. Nixon was never convicted of any crime, all crimes he is alleged to have committed are just that, alleged. Saying anything differently is the very partisanship you accuse me of.

I consider removing the word "alleged" from the description to be unfounded vandalism.--RWR8189 07:07, 27 March 2006 (UTC)

If Nixon ordered Watergate, the place to make edits is on the Watergate scandal page, which currently reads:

There is still much dispute about the level of involvement of leading figures in the White House, such as Attorney General John Mitchell, chief of staff Haldeman, leading aides Charles Colson and John Ehrlichman, and Nixon himself. Mitchell dubbed these events the White House horrors. As the head of CRP, along with campaign manager Jeb Stuart Magruder and Fred LaRue, Mitchell approved Hunt's and Liddy's espionage plans, including the break-in, but whether it went above them is unclear.

If it's undisputed that Nixon ordered the burglary, I think the thing to do is edit the Watergate scandal page and include your source; pending that edit, I think that this page should follow the Watergate scandal page's version of events. (Also, the idea that Nixon ordered the Watergate burglary in reliance on the unitary executive theory is absurd, so the whole discussion doesn't belong here -- are we going to start arguing that the Teapot Dome scandal or Chinagate are relevant to the unitary executive theory? TheronJ 15:07, 27 March 2006 (UTC)

The section discusses abuse of power. As to the UET, you are well aware some suggest that the theory is about such broad powers as being part of the constitution and therefore it is not abuse of power but implementation of the inherent power of the Executive:

Although his language is less blatant, George Bush is claiming the same imperial powers today. Nomen Nescio 15:49, 27 March 2006 (UTC)

I have reworded to assign the responsiblity to The Administration of RMN. I believe this is all the detail justified in this article. The present long form is excessive. The weaselwording of RWR8189 is flatly unacceptable. Septentrionalis 00:56, 29 March 2006 (UTC)

That is much better. Your original wording was just factually incorrect, the entire "Nixon administration" was not responsible for Watergate, to suggest that is absurd.--RWR8189 01:01, 29 March 2006 (UTC)

This argument is an artificial reading of plain English. An action of the Attorney-General, supported by other senior figures, is an action of the Administration. I will let the unnecessarily complex form sit for a time, since it is not, unlike the weaselwording, actively misleading; is there support for RWR8189's apologetics? Septentrionalis 01:46, 29 March 2006 (UTC)

All I am trying to do is avoid confusion and insert clarity into the article. The Attorney General is an independent officer. This wording should stay as it is.

You seem to be the only one playing politics with this issue, and its obvious you have an axe to grind.--RWR8189 05:27, 29 March 2006 (UTC)

Ny only axe is an objection to weaselworded edits, like this one, before I ever edited this article: was alleged to have Septentrionalis 06:41, 29 March 2006 (UTC)

My only intention was clarify an obvious falsehood in an article whose neutrality is already in dispute. In terms of NPOV, the version we are at now is much better.--RWR8189 08:21, 29 March 2006 (UTC)

Thanks for working with us, PManderson -- IMHO, the current version is great. TheronJ 14:18, 29 March 2006 (UTC)

And thanks to TheronJ for correcting parts of it and giving it more body. Looks nice. Nomen Nescio 17:09, 29 March 2006 (UTC)

Inclusion in GWB intro

I have suggested at Talk:George_W._Bush#Outside_views the inclusion of a link to unitary exective theory in the intro of the GWB article, as a comprimise to the debated inclusion of the NSA electronic survellience controversy and habeaus corpus. However, I am having difficulty coming up with good wording. I am hopeful that contributors to this article might be interested in this task and better equiped for it. Suggestions and thoughts are welcome at Talk:George_W._Bush#Outside_views. Thank you. Kevin Baas^talk 03:03, 3 April 2006 (UTC)

Andrew Johnson Impeachment not mentioned, why?

It would seem that the impeachment trial of Andrew Johnson because of his disregarding an act passed by Congress would be pertinent to this discussion. I request that someone familiar to the history of that case discuss it fairly and evenhandedly so as to inform the discusison.

—Preceding unsigned comment added by Zeamays (talk • contribs) 21:08, 26 July 2006 (UTC)

Jefferson and Marbury v. Madison

Why is this being cited the way it is? As it stands, the reference is very confused and does not present a clear picture of the situation. Go back and read the decision. It's very clear on what the decision actually means and what the Court's opinion on Jefferson's actions was.

Jefferson orders Madison (SecState) to hold the commissions for a round of new justices, the "midnight judges" that were confirmed just prior to John Adams leaving office. (As a side note, the only reason that any of the commissions were delivered was that some of them were passed on before Jefferson's order to Madison was given.) Several justices press suit against Madison to get him to hand over the orders. Chief Justice Marshall's ruling says three things: first, and most importantly, the part of the 1789 Judiciary Act giving it jurisdiction over the case is unconstitutional, meaning that the case was thrown out on the grounds that the court lacked original jurisdiction; second, the part of the 1789 Judiciary Act in question was stricken as unconstitutional, establishing the precedent of judicial review; and third, least importantly, that the justices were entitled to the commissions that Madison was witholding.

Thus, the simple statement that Jefferson chose to withold the commissions is both misleading and out of context. It provides an unclear picture of what the situation was and what the President's actions actually meant. The Supreme Court's ruling on Jefferson's actions, while fairly explicit, was also non-binding due to the fact that, constitutionally, it had no grounds to even hear the case. The ability to make that distinction and rule on the constitutionality of law was the important aspect of the case. However, the ruling also declares that Madison's actions were illegal.

I submit to you that this stub of an argument is misleading and obscures the relation of the incident in question to the topic of unitary executive power, seeming to support the conclusion that Jefferson and Madison were within their legal rights to take that action. The fact that the Supreme Court said the exact opposite is not addressed.Moonsword 23:04, 26 September 2006 (UTC)

Excellent analysis, but more generally this article conflates the concepts of the unitary exective and executive power, obfuscating both, and illuminated neither. It is this bigger probelm which allows all of these supposedly illustrative examples to be attached to the fairly simple concept of the UET stated in the first paragraph. I continue to feel (see above) that this article is unsalvagable and should be a candidate for deletion if it cannot be cut back enough to say something concise about the Unitary Executive Theory.--Paul 23:23, 26 September 2006 (UTC)

Let me make something clear: I'm not a legal scholar, I'm a history student who is very close to a B.A. That analysis is nothing more than quoting both my prior exposure to the subject and the Wikipedia article on Marbury v. Madison; I'm not familiar with the exact nuances of legal interpretations, only the general implications of the case.

At the same time, let me advance a suggestion from my actual academic training. We have, basically, two options at this point. The first is to take the article out, shoot it, and replace it. The second is to very directly, very formally, and (probably) very verbosely make a direct argument on what UET is, what it is not, and what existing historical documents (mainly court decisions) have to say. The major problem with option two is that it runs very close to and probably violates the no original research policy as there is not currently a complete consensus on UET or executive power within the legal field. Any work is very likely to be original research simply because there isn't much research on this topic.

Option one is also not a very good one. A simple, concise statement does not give the full context to the issue, in my opinion. UET is, as I understand it, an extension of executive power vis a vis the separation of powers within the Constitution; executive power is the context to the discussion.

I'm going to go ahead and say that, as far as I'm concerned, UET is bullshit and John Yoo needs to go and reread the Constitution and a variety of Supreme Court cases. Still, the subject is relevant to the policy debates going on at the moment and needs to be covered properly and both sides of the arguments need to be presented fairly so that people can come to their own conclusions.

Might a better solution be to clearly and definitively state what UET is, how it relates to/alters/expands on executive power, being careful to define the difference between UET and executive power, and then relevant historical precedents/examples and then the contemporary reactions? The examples, by the way, need to have a quick, one- to two-sentence description of the situation followed by a very clear statement of how they relate and to what extent to the discussion of UET's proposed expansion of executive power. Then, the contemporary reactions, political and legal.Moonsword 01:47, 27 September 2006 (UTC)

Andrew Jackson

The article clames that the SOCTUS was powerless to force the Jackson administration to enforce the court's ruling. This is dubious statement, and has no bearing in history. The fact is that the ruling was rendered moot when the Jackson administration (ostensibly) negotiated a treaty with the Cherokee tribe. Jackson never claimed that the courts were powerless. To imply otherwise is to propagate a misconception at best, and misleading at worst. See http://en.wikipedia.org/wiki/Andrew_jackson#.22Indian_Removal.22 . 67.180.161.52 09:33, 11 January 2007 (UTC)

? "John Marshall has made his decision; now let him enforce it." Wikipedia, especially on American history, is not a reliable source. Septentrionalis PMAnderson 18:34, 17 January 2007 (UTC)

Addington

See The Hidden Power by Jane Mayer for The New Yorker; on David Addington. I have included a bare reference; but it discusses Addington's ideas at some length, and may prove useful. Septentrionalis PMAnderson 18:34, 17 January 2007 (UTC)

Milligan

First, the actual statement is unsourced. While some people may cite Milligan in their opposition, there's no citation that they're citing it for this proposition. Second, the statement is factually false. Compare the quotation:

Skeptics are not convinced, since the Supreme Court in Ex Parte Milligan had already determined that the suspension of Habeas corpus was unconstitutional.

...with the quotation from the entry for Ex Parte Milligan:

The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating, and the Constitution of the United States provided for suspension of habeas corpus only if these courts are actually forced closed.

The suspension of habeas in Milligan was unconstitutional only as applied in that particular instance, not overall. Therefore, the quotation is factually incorrect and should not be placed in this article, especially without a citation to someone making that factually incorrect claim. --Zz414 16:05, 23 February 2007 (UTC)

Several obseervations

1. There is no source using it to support, so to be fair you should remove that also.
2. The fact remains that the article above states

• "It was decided in the Supreme Court case Ex Parte Milligan that the suspension had been unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed."

making it unconstitunional. Thereby refuting those that use this case as proof it can be used as evidence Lincoln did the same. In effect the removed sentence is factually correct. To be sure, the sentence refers to Lincoln and not the general principle which you think it does.Amend accordingly please.

Nomen Nescio^{Gnothi seauton} 16:13, 23 February 2007 (UTC)

I've edited the page to include the direct citation from the Milligan page about what the Court ruled, and I've added a citation to the supporters' view of Lincoln. I think this addresses all concerns. --Zz414 16:59, 23 February 2007 (UTC)

Thanks, I've added clarification that since that act was deemed unconstitutional any analogy is incorrect. Whatever the reason, his war powers were insufficient to allow suspension of habeas corpus, so the analogy is flawed. Nomen Nescio^{Gnothi seauton} 17:38, 24 February 2007 (UTC)

That's not an entirely accurate characterization, either. While Milligan states that suspension for civilians when regular courts were open was unconstitutional, supporters cite Quirin as distinguishing Milligan, because Congress gave an authorization for the use of military force just like Quirin and unlike Milligan. I don't think we need to evaluate either side's claim, but simply set forth what each side has argued.

I wasn't entirely clear, so let me follow up. The historical examples for the Copperheads were upheld under cases like Ex parte Vallandingham. Milligan involved civilians unlike the Copperheads. So it's incorrect to call the historical example a "paradox" in light of Milligan. --Zz414 17:54, 24 February 2007 (UTC)

You misunderstand the point. Whatever the explanation, the court has ruled that the President broke the law. To refer to his actions by citing Milligan without also mentioning that those actions were illegal seems to me POV. If the comment is meant to illustrate others have invoked their Commander-in-Chief status we should be NPOV and state that those war powers (for whatever reason!) were not supported by the constitution (Milligan)! Unless you think Milligan did not refute those war powers.Nomen Nescio^{Gnothi seauton} 23:51, 24 February 2007 (UTC)

• After thinking on it I can only say that your edit is totally confusing. What has Quirin to do with claiming the power to ignore existing US and International Law? Milligan is only relevant since that case stated that war powers do not trump the constitution. The entire paragraph makes no sense to me. Please explain what you are trying to convey.

Nomen Nescio^{Gnothi seauton} 00:54, 25 February 2007 (UTC)

Sorry, it's confusing, and I've not been helpful explaining. The article doesn't say that supporters cite Milligan. Opponents cite Milligan, which found the suspension of habeas in that case was unconstitutional. Supporters cite Quirin, which found the suspension of habeas in that case constitutional, and the Copperheads incident, which supporters use to distinguish Milligan. But I think, Nescio, that you think the supporters are citing Milligan, which this article doesn't state. Also, Ex parte Quirin (as the Wiki article show) is potentially applicable, supporters claim, because it had to do with the detention of enemy combatants and the suspension of habeas corpus as they were tried before military tribunals. Both sides have strong arguments, and I'm not sure which one has the better one, to be honest. Nevertheless, it's not like Milligan is the final word on this issue; there are other sides, as Quirin shows, and it's impossible to make a conclusion about which one is "right" and which one is "wrong" in this article. --Zz414 01:53, 25 February 2007 (UTC)

I understand what you say, and even agree. However, you miss the point I am making

• It is about war powers, not habeas corpus, although suspension of it was done invoking those war powers.
• Regarding unlawful combatant status I agree people invoke Quirin to argue the legality ofdenying POW's in the war on terror protection by the GC. But like Milligan, Quirin is not comparable to captives in the war on terror. See this quote from unlawful combatant article.

The validity of this case, as basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions, has been disputed. A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.

• In short, to me the paragraph is not only confusing, it conflates several unrelated subjects to support the notion that as Commander-in-Chief the President can ignore any law, US or international, that he sees fit. That is of course the central theme of this article and hopefully you agree such a stance is ludicrous because it effectively places the President above the law (negating the checks and balances provided by the constitution), just like your average dictator.Nomen Nescio^{Gnothi seauton} 13:58, 25 February 2007 (UTC)

I guess I just fail to see how the paragraph, which indicates and cites what both supporters and opponents say without evaluating either side of the argument, is problematic. As is evident, the people disagree about the applicable law and what the President is authorized to do. I don't think it's appropriate to critically evaluate one side's view of the argument. Let's see if we can get a third opinion. --Zz414 15:00, 25 February 2007 (UTC)

I respect your choice to ask for fresh input, but you still fail to understand that you confuse several topics with this article. Stating the reasons for suspending habeas corpus is not equal to stating the principle of unitary executive. The same is true for unlawful combatants. The fact people argue there is precedent in history for not allowing protection by the GC is still not equal to suggesting the President can ignore current law at his will. Unless your position is that both suspending HC and claiming UC status is founded on the presumption that the president as C-I-C has the right to interpret those laws as he sees fit, i.e. invoking the UET. This however is not the way I read the source you provided. As long as the article discusses HC and UC the caveat belongs in those articles and not here. I will await comment from outside. Respectfully Nomen Nescio^{Gnothi seauton} 17:52, 26 February 2007 (UTC)

Third opinion

I really don't see why specific instances of executive actions which illustrate the principle would not belong in an article regarding those principles, and certainly the debate on the topics of "unlawful combatants" and suspension of habeas corpus have centered around the proper limits of Presidential power. I'm failing to see what the problem with that is, it sure seems to belong here. Seraphimblade ^{Talk to me Please review me!} 18:20, 1 March 2007 (UTC)

Thanks and you are correct. However, that was not the topic. Question is, does the proponent and opponent view at the end of the article discuss the UET. The paragraph reads as a pro and con, while the supplied ref does not mention UET. Without clear use of that term it is OR to include that article as pertaining to this article.Nomen Nescio^{Gnothi seauton} 18:40, 1 March 2007 (UTC)

This needs to be sourced

Nevertheless, even when habeas corpus is suspended, both common law and civil law theoretically allow the remedies of replevin and trover, wherein the imprisoned individual could claim loss of a possession (liberty) and demand its restoration. However, this is a theoretical principle and has not been tested in any court of or within the United States.

Roadrunner 04:57, 24 March 2007 (UTC)

Contradiction

There are two claimed facts in this article that are in direct contradiction.

"U.S. courts have not explicitly ruled on the theory, though there are two published opinions that relate to the claims of the theory. Chief Justice Taft, writing for the majority in Myers v. United States derived an unlimited presidential removal power over executive department subordinates."

"They have also indicated that in every single Supreme Court case involving a statutory restriction of the power of the President, the statute has been upheld, including several in which the statute was only held to imply the limitation on Presidential power, let alone explicitly limit it"

Only one of these statements can be true. There is no question that Myers v. United States occurred and that it was a land mark case. There is also no question that the decision ruled the tenure of office act as well as Section 6 of the Act of July 12, 1876 unconstitutional. Therefore the claim that "in all Supreme Court case involving a statutory restriction of the power of the President, the statute has been upheld" is clearly false. I plan to delete it after some discussion.GTTofAK 16:52, 25 July 2007 (UTC)

• Not sure why that statement cannot be true. AFAIK limitations on executive power have been supported by case law, as the sentence states. Please elaborate.Nomen Nescio^{Gnothi seauton} 18:43, 25 July 2007 (UTC)
  • That’s not what it says. It says that in ALL cases brought before the SCOTUS the statute was upheld. That is not true. The article itself shows that is not true. Myers v. United States struck down 2 such statutes and despite some other rulings it still stands as the most significant controlling decision on the issue. This article does a perfectly good job of showing that decisions have gone both ways. But saying 'in every singe Supreme Court case involving a statutory restriction of the power of the President, the statute has been upheld" is contradictory to other parts of the article and flat out false.GTTofAK 22:11, 25 July 2007 (UTC)

Article 4, Section 4 - United States shall protect against invasion and against domestic violence.

US Constitution(http://www.law.cornell.edu/constitution/constitution.articleiv.html#section4) Article 4, Section 4. "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."

I take this to mean the three branches are responsible for action as a whole and independently and are obligated to act to that end, both proactively and retroactively. Tobyw (talk) 16:59, 22 August 2008 (UTC)

Are you a Reliable Source?. Wikipedia is not supposed to be a debating society.--Paul (talk) 17:12, 22 August 2008 (UTC)

Number of Signing Statements

There is a contradiction in the article about the number of signing statements issued by George W. Bush and prior presidents. The sources I've seen are unclear about the methodology used to count signing statements, but the application in the article should be consistent. See How many statements has George W. Bush signed?

--Chris4d (talk) 17:33, 16 October 2008 (UTC)

Run on sentence

The first sentence is a run-on sentence I think, I am not very good at English but when I read that first sentence I feel like I'm being attacked by commas. —Preceding unsigned comment added by 66.190.245.129 (talk) 23:54, 23 October 2008 (UTC)

Two sets of footnotes

I don't think we need two sets of footnotes, titled "Notes" and "Additional notes" respectively. They ought to be integrated together. Also, as I explained above, the section on "Executive powers of U.S. administrations" ought to be removed, because it is just a mish-mash of stuff that presidents have done, without any direct connection to the unitary executive theory (and all of those presidential actions are already described in the respective biographical articles).Ferrylodge (talk) 01:19, 23 December 2008 (UTC)

Removing sourced material simply because you disagree appears a bit controversial. In the coming days I will restore the discussion of the interpretation that Bushco used to subvert the law as even Joe Biden feels that interpreatation of UET is applied. Whether you agree is absolutely irrelevant: see WP:TRUTH.Nomen Nescio^{Gnothi seauton} 14:48, 29 December 2008 (UTC)

I didn't say I disagreed with it. I said that there is no direct connection to the unitary executive theory. For example, you quote at length from a detailed report of the American Bar Association which says exactly nothing about the "unitary executive" theory. Your animus toward "Bushco" is very evident from your comment above, and from the excessive material that you've just inserted into the article (e.g. "Others note that the view Yoo advocates, closely resembles the Führerprinzip"). Now that Bush is on his way out, any chance of conforming this article to WP:NPOV?Ferrylodge (talk) 17:52, 29 December 2008 (UTC)

Since the section repeatedly uses sources that explicitly discuss this theory I am not sure what "no direct connection to the unitary executive theory" means. Unless we involke WP:TRUTH. As to the ABA, I totally agree with you, however this version was a compromise reached after intense debate. If you want to I can rewrite it in a way that better reflects the relevancy. will do so the coming days and then we will see if that version is acceptable. Thank you for understanding.Nomen Nescio^{Gnothi seauton} 18:15, 29 December 2008 (UTC)

That report from the ABA doesn't belong in this article. See WP:Synth. The same is true of much of the other material. Perhaps you ought to create a sub-article about Bush's alleged aggrandizement of executive power. Also, the unitary executive theory is primarily about how power is distributed within the executive branch, rather than how it is distributed between the three branches. It is less about the scope of executive power than about who wields it. For example, if a president argues that he has power to declare war in order to expand the country, then that has nothing to do with the unitary executive theory, and everything to do with the balance of powers. I think these distinctions need to be made clearer in the article. The section on Bush is way too long, and it often meanders away from the subject of this article.Ferrylodge (talk) 18:23, 29 December 2008 (UTC)

In the interest of clarity I have to admit that I adhere to WP:V. You on the other hand appear to prefer WP:TRUTH. You will find that WP policy requires us to accept anything that we can attribute to sources, see WP:ATT whereas our personal opinion is considered irrelevant, see WP:NOR. Also you may want to consult the archives as the claim that the UET is not about unlimited power has been debated before. You will find it helpful.Nomen Nescio^{Gnothi seauton} 19:23, 29 December 2008 (UTC)

Everything I've said in this talk-page section can be sourced to reliable sources. WP policy does not require us to accept anything that we can attribute to sources. The material needs to be relevant, and presented neutrally, without undue weight.Ferrylodge (talk) 19:30, 29 December 2008 (UTC)

Numerous sources (with Joe Biden only recently) claim that the concept -they explicitly call the unitary executive theory- stands for unlimited Presidential power. Considering WP:V, WP:NOR, WP:RS, and all the others you might want to look at, I have great difficulty understanding on what grounds you want to exclude this criticism. BTW I will trim the section some more, let me know what you think..Nomen Nescio^{Gnothi seauton} 13:00, 30 December 2008 (UTC)

Joe Biden is not within WP:RS.Ferrylodge (talk) 16:23, 30 December 2008 (UTC)

Wow! That is pretty amazing. Did you just say that the next Vice-President of the USA fails WP:RS? Stupified is what comes to mind.Nomen Nescio^{Gnothi seauton} 14:52, 2 January 2009 (UTC)

That's right. And George W. Bush is not within WP:RS either. You can't just insert a statement into this article and footnote it to either Bush or Biden.Ferrylodge (talk) 16:33, 2 January 2009 (UTC)

Sorry, but when somebody willfully ignores the numerous legal scholars and then has the audacity to opine that neither the President nor the Vice-President are in any way to be used as sources for what Presidential powers they may or may not have I need to reread WP:AGF. Of course "we do not torture" is not a reliable statement according to you.Nomen Nescio^{Gnothi seauton} 17:04, 2 January 2009 (UTC)

"We do not torture" is not a reliable statement because it is a false statement, and can be verified as such. What you think someone else thinks about it is irrelevant.172.190.165.253 (talk) 11:17, 24 February 2009 (UTC)

A more germane question is what does "we do not torture" have to do with the Unitary Executive Theory?--Paul (talk) 17:18, 2 January 2009 (UTC)

As Mr Yoo explained: the UET means that if the President feels it is needed UNCAT can be ignored waving the magic wand Commander-in-Chief. Having adopted this silly theory to allow a policy of torture many are feeling increasingly uncomfortable now criminal prosecutions are waiting in the shadows. Second it is a reply to someone claiming that "George W. Bush is not within WP:RS either."Nomen Nescio^{Gnothi seauton} 23:44, 2 January 2009 (UTC)

This is supposed to be an encyclopedia article, not an op/ed page. We need reputable reliable sources, like books, law review articles, and news articles. To the extent that we mention opinion pieces, we need to attribute them in text, and provide some semblance of a neutral presentation. And virtually every source we cite or quote has to be specifically about the "unitary executive" theory. Otherwise, we're engaging in WP:SYNTH, and opening the door for this article to go rambling off in all sorts of different directions. Also, the section on Bush is way too long; the same basic information could be provided with about a quarter of the words.Ferrylodge (talk) 02:15, 3 January 2009 (UTC)

Unbalanced

The top of this article now says: "This article may be inaccurate or unbalanced in favor of certain viewpoints. Please improve the article by adding information on neglected viewpoints, or discuss the issue on the talk page." Seems like the person who inserted that tag ought to explain which sections of the article she thinks it applies to, and why.Ferrylodge (talk) 22:35, 10 January 2009 (UTC)

I didn't move the unbalanced tag from the GWB section to the top of the article, but I think the article is currently unbalanced and is essentially a WP:COATRACK for an one-sided attack on the Bush administrations views of executive power. The UET was not the sole intellectual argument for executive power during the Bush administration, but is certainly seems to have been a handy argument for Bush's critics. I think this article could easily be cut by half and would end up clearly communicating what the UET is and what some of the associated arguments are.--Paul (talk) 19:10, 11 January 2009 (UTC)

If the GWB section is the primary problem, then the tag ought to be in that section rather than at the top of the article, right?Ferrylodge (talk) 19:13, 11 January 2009 (UTC)

Impeachment as remedy

Shouldn't it be mentioned as a reminder that any congress that thinks the president is going too far in the exertion of unitary executive power always has the option of impeachment? This may seem obvious, but in a discussion of strong UET as extreme or dangerous, we should note that a president would be more reserved in exerting UE power if s/he had real reason to fear impeachment. That is congress's check over UE power. UE has only become a politically charged issue over the years as congress has, over the years, seen its impeachment option as being a power to be used only rarely. If congress would wield it more frequently and more credibly, UET would be a non-issue and a proper tension would exist between the executive and legislative branches. —Preceding unsigned comment added by Gboren (talk • contribs) 17:14, 11 January 2009 (UTC)

If you can find a reliable source that specifically describes calls for checking the UET by the prospect of impeachment, then that could be mentioned in this article, along with a description of the possible response by the executive branch (e.g. vetoing more bills). Another way to check the UET would be by simply suing the president and letting SCOTUS decide, and that option would probably have to be mentioned in this article too.Ferrylodge (talk) 17:45, 11 January 2009 (UTC)

Also, note that the article already quotes the framers of the Constitution: "far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment."Ferrylodge (talk) 22:36, 11 January 2009 (UTC)

Objection!

Seeing the major removal of sourced context while ignoring the main reason this concept is known today is unacceptable. I will leave it but will reinsert the sanatised parts when I finished cleaning up the text and refs.Nomen Nescio^{Gnothi seauton} 20:09, 12 January 2009 (UTC)

You might want to put the material here at the talk page to gain consensus, before reinserting into the article.Ferrylodge (talk) 20:24, 12 January 2009 (UTC)

Not sure why you say that, as the article was recently massively rewritten (read: relevant information deleted) without such requirement. Secomd, I remember there is something like WP:BOLD. Therefore reinserted cleaned-up wersion. You probably may want to elaborate on why extensively sourced material cannot be used.Nomen Nescio^{Gnothi seauton} 11:05, 22 January 2009 (UTC)

This article badly needs a balanced point of view, references, wikification, fact checking and some recognition that the Constitution grants all the power to Conress and only the responsibility to preserve protect and defend the Constitution and the laws of the United States to the Executive Branch. It should be admitted that the Executive Branch has very sucessfully spent the last two hundred years ursurping power from Congress aided and abbeted by the Federalist Society and those who don't like their action tempered with deliberation. There should definitely be a section that documents the slippery slope. Rktect (talk) 22:26, 22 January 2009 (UTC)

That might all be true if this was DKosopedia, or if WP:POV didn't exist. As it is, most of what you're talking about is highly POV, as is the tone in which your suggestions are couched.Simon Dodd (talk) 22:44, 22 January 2009 (UTC)

It might just all be true Rktect (talk)

It's POV nonsense. It's also false; the Constitution grants all legislative power to Congress, not all power, and vests the executive power in the President. The realm of legitimate debate on this subject is what "executive power" means and the significance of its vesting in the President specifically. If you want to update the article with a verifiable source claiming that a notable person believes this stuff, insert it in that format. Otherwise what you're doing is just vandalism.Simon Dodd (talk) 01:11, 23 January 2009 (UTC)

See Article II Section 8.

Section 8. The Congress shall have power... enumerated list...

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

The Congress controls every aspect of making war despite the Defense Department is in the Executive branch. They declare it, declare an end to it, provide armies and navies, fund them, make rules for them and govern them.

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The president has no power without the advice and consent of the Senate; his job is to execute their instructions and his responsibility (not power) is to preserve, protect and defend the Constitution and the laws of the United States.

The article needs to reflect that someone has actually read this document. Rktect (talk) 19:00, 23 January 2009 (UTC)

Rktect, what you're doing is vandalism (and Constitutionally illiterate vandalism, at that), and you have been warned here and on your talk page. [1]. Please contribute productively.Simon Dodd (talk) 19:06, 23 January 2009 (UTC)

Footnotes in the lead

According to Wikipedia:Lead_section#Citations:

"Because the lead will usually repeat information also in the body, editors should balance the desire to avoid redundant citations in the lead with the desire to aid readers in locating sources for challengeable material."

So, if information in the body of the article is adequately footnoted, and some of that is summarized in the lead, I don't think we really need to footnote it again in the lead.

Also, regarding the footnotes in the body, their purpose is to support statements made in the body, or to explain in greater detail something stated in the body. That is all. See WP:Footnotes. Therefore, some of the footnotes now in the article are waaaaaaaaay too long. A footnote shuold not become a link farm.Ferrylodge (talk) 20:33, 23 January 2009 (UTC)

Two comments

• 1 The number of refs (linkfarm to some) is because on numerous occassions people insisted certain sentences are unsupported, and certainly untrue. If anything, an abundance of refs precludes such objections.
• 2 Somebody may have accidentilly ruined the rerfs. I can only see numbered refs until 17, past that it turns into a bullet list. Thoughts? My browser?Nomen Nescio^{Gnothi seauton} 20:55, 23 January 2009 (UTC)

On your first point, quantity is no substitute for quality. In each footnote, please pick the best reference that best supports the statement in the body, and remove the others.

Also, the whole section on GW Bush is going to need a lot of work. You're reinserting lots of material that does not mention anything about the "unitary" executive theory. We've got to stay on topic. If the source doesn't mention the "unitary" or "unified" executive, or the like, then please let's not use it.Ferrylodge (talk) 21:05, 23 January 2009 (UTC)

Clearly you are not familiar with the material. Everything in that section pertains to the UET. See refs. Second, for convenience I placed all the refs discussing the same thing in the same number, i.e. suggested interpretation covers all the refs that support the sentences that it is supposed to cover.Nomen Nescio^{Gnothi seauton} 09:51, 24 January 2009 (UTC)

Agree on the matter of nested footnotes. It's a tangled maze. The way it is now, no one without superhuman research skills can determine if a given statement is verifiable and supported by a reliable source. I had considered removing all of the footnotes in the GWB section and replacing them with cite needed tags, but that isn't very friendly. It certainly would be much better if Nescio or someone else familiar with the material would prune them down.--Paul (talk) 21:59, 23 January 2009 (UTC)

• Unfriendly, maybe, but bold, certainly. ;)Simon Dodd (talk) 22:39, 23 January 2009 (UTC)

Will have a look if less refs still convinces oponents that certain interpretations do exist.Nomen Nescio^{Gnothi seauton} 09:51, 24 January 2009 (UTC)

We're discussing this footnote. Eleven sources are cited in the footnote, and the footnote is used nine times in the Wikipedia article. For each occurence of the footnote, are all eleven sources needed? I very much doubt it. This huge footnote ought to be either split up into smaller footnotes, or the huge footnote ought to be removed. It's practically useless the way it is now, because no one knows which reference is the best reference for each occurrence of the footnote.Ferrylodge (talk) 22:52, 24 January 2009 (UTC)

Not all references are needed if editors agree the suggested interpretation does exist and is sourced. Second, if you prefer eleven seperate notes after all those sentences (they do cover the same topics) be my guest. To me this is a more user friendly approach. No doubt having the text filled with notes decreases readability.Nomen Nescio^{Gnothi seauton} 18:10, 29 January 2009 (UTC)

Call me a skeptic, but I'd be really surprised if every fact that this compound footnote is used on is verified by every source within the footnote. It isn't clear, and certainly does not conform to the recommended citing style.--Paul (talk) 20:01, 29 January 2009 (UTC)

Why not pick out one or two references that you think do the best job, and leave out the rest?Ferrylodge (talk) 18:30, 29 January 2009 (UTC)

The bulleted list is now removed and the references fixed. Now all you have to fix is what the article says, maybe read somebody besides Yoo and Calibresi. Also the article should begin with The Unitary Executive Theory bolded Rktect (talk) 22:21, 23 January 2009 (UTC)

The article name is already bolded. The word "the" isn't, and shouldn't be; by convention, Wikipedia article titles omit the definite article, often leaving the need for the word "The" to appear, unboldened, as the first word of the article. Cf., e.g., Theory of relativity; Lateran Treaty.Simon Dodd (talk) 22:43, 23 January 2009 (UTC)

Speech by Al Gore

This article presently includes a large excerpt from a speech by Al Gore. In the speech, Gore says nothing about the "unitary" executive. Gore said: "the Administration claims instead that the surveillance was implicitly authorized when Congress voted to use force against those who attacked us on September 11th." Thus, he was attacking the administration's claim of statutory authority, not attacking a "unitary executive" claim. This large excerpt from Gore may be fine in some other Wikipedia article (e.g. an article about FISA), but not this article.Ferrylodge (talk) 01:06, 24 January 2009 (UTC)

That is the problem with this article. It has become a coat rack on which to hang a broad attack on the the perceived excess Presidential powers claimed by the Bush administration. This broader discussion belongs somewhere else, not here.--Paul (talk) 02:42, 24 January 2009 (UTC)

The real problem with this article is that its badly written (The Unitary Executive Theory is a doctrine?). After we get past the writing it needs wikification. After that it has an unsupported either or acceptance premise that everyone accepts the unitary executive in some form or other which is not so far as I could tell attributed to any given author.Rktect (talk) 10:13, 24 January 2009 (UTC)

When Bush invokes UET (in his signing statements) to explain the legallity of his actions -i.e. spying on US citizens, ignoring GC- I see no reaon to ignore that. Gore merely responded to his claim of unrestricted power: i.e. the unitary executive. Further, pointing out certain views is not equivalent to an "attack." That is why the word "criticism" was invented, to stress the difference with "attack." Dismissing any opposing view by invoking ad hominems seems a bit unreasonable. If you can show that that section is not based upon RS and is only the opinion of a WP editor I am interested to hear your arguments on that. Till such time I consider anything that adheres to WP:V acceptable to be included.Nomen Nescio^{Gnothi seauton} 09:59, 24 January 2009 (UTC)

Why does the article say that the theory is "widely accepted"? The article goes on to point out that its one of the most contraversial opinions ever put forth. Competent constitutional scholars reject it across the board. Certainly the concern among conservatives that actions taken by the Bush administration based on Alberto Gonzales having approved it will lead to prosecutions by the new administration do not show any substantive confidence that its validity can be argued in a court of law. Rktect (talk) 11:59, 24 January 2009 (UTC)

Law professors Lawrence Lessig and Cass Sunstein, are liberals, friends of Barack. They write: "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version." See Lessig, Lawrence and Sunstein, Cass. "The President and the Administration," Columbia Law Review, Volume 94 (1994). There is no question but that the framers created a unitary executive. That basic fact is not in dispute (except maybe by some fringe scholars and some editors at Wikipedia). The dispute is between the so-called "weak" version of the theory and the "strong" version of the theory.

In any event, Gore was not referring to either version.Ferrylodge (talk) 20:53, 24 January 2009 (UTC)

Liberals, or those who would self describe as liberals traditionally seek the center. When they say "No one denies that in some sense the framers created a unitary executive" they aren't speaking for me or most people I know. I don't think they are speaking for John Dean of Bruce Fein who have both served in conservative Republican administrations and would not fit most peoples definition of fringe scholars or editors of Wikipedia. The framing of the theory in such terms that you may only accept a strong unitary executive or a weak unitary executive leaves no room for what the Constitution says which is that there is no unitary executive. The President must preserve, protect and defend the Constitution and the laws of the United States. Congress makes all the laws, has all the power. The President has the responsibility to execute their instructions. Rktect (talk) 00:39, 25 January 2009 (UTC)

But John Dean isn't against all versions of the "unitary executive theory". Dean wrote: "When it was first conceived, the unitary executive theory was rather innocuous." I can probably find a similar quote from Bruce Fein if you would like. (And I guarantee that Bruce Fein considers himself more conservative than Cass Sunstein.)Ferrylodge (talk) 00:50, 25 January 2009 (UTC)

I read it as saying that the general principles underlying the unitary executive doctrine are widely accepted (which they are), even if the particulars of the doctrine are controversial. It is generally agreed that bricks are good building materials even if it may be controversial that any given brick structure is soundly-built.Simon Dodd (talk) 20:23, 24 January 2009 (UTC)

Widely accepted interpretation, not agreed upon but recognised as factually existing. Second, the lack of legal arguments of couse explains the need to keep this from judicial review. Hence the obstruction (state secrets privilege) of relevant cases.Nomen Nescio^{Gnothi seauton} 12:04, 24 January 2009 (UTC)

Widely accepted interpretation by whom? How can it be widely accepted and controversial at the dame time?

widely accepted

I think what you mean is that it is widely accepted that the theory holds a controversial premise that the President holds sovreignity over the laws of Congress within his Executive Branch. This is essentially a continuation of the expression during the Nixon administration that if the President does it its legal.

There is no lack of arguments for this premise, and they have been used to justify many actions of the Bush administration which contravene the laws of the United States. Because it is feared none of these actions based on the arguments in support of the unitary executive theory can stand the light of day in a court of law, many of the actions have been shrouded in secrecy to avoid prosecution. Rktect (talk) 13:37, 24 January 2009 (UTC)

Please read the following aloud: This argument is widely regarded as consistent with legal positions promulgated by John Yoo. You will find no contradiction in stating that many believe it originated with Yoo, and then rejecting his views.Nomen Nescio^{Gnothi seauton} 14:48, 24 January 2009 (UTC)

Does the article say that? I must have missed it... Ok, I went back and looked and found it in the Bush section...thank you for putting that there. Can it be moved up the page a bit? Rktect (talk) 16:35, 24 January 2009 (UTC)

What about where we say the theory is considered innocuous. It is intended to remove from Congress its exclusive power to legislate, control of the the military, its power of the purse, its oversight by giving the president control of the defense department, the pentagon, the justice department, war powers for a forever war, a number of off budget intelligence agencies engaged in covert actions which Congress is prevented from investigating by claims of national security and security clearances.Rktect (talk) 23:43, 24 January 2009 (UTC)

I've put a footnote at the end of the sentence, citing John Dean. Dean wrote: "When it was first conceived, the unitary executive theory was rather innocuous." Your assertion that the theory is intended to remove from Congress its exclusive power to legislate is only true of some forms of the theory, and not others.Ferrylodge (talk) 23:50, 24 January 2009 (UTC)

I appreciate that John Dean and Bruce Fein have criticised the theory, and the reader may be advised to read other discussion of it as well, but perhaps it would be good to have a place in the article where a reader can be exposed directly to some of the implications of a President picking and choosing what laws he is going to obey. Rktect (talk) 23:59, 24 January 2009 (UTC)

whether Congress can divide executive power

"If the president does it then it's legal" is just as false as the statement that "If the Supreme Court does it then it's legal" and "If Congress does it then it's legal." John Adams once wrote: "the legislative department shall never exercise the executive and judicial powers or either of them."

Wikipedia already has an article about the imperial presidency. The present article has a more narrow focus: it's about whether Congress can divide executive power, e.g. by giving some executive branch officials discretionary authority that is uncontrollable by the president.Ferrylodge (talk) 00:17, 25 January 2009 (UTC)

If that is what it is about could we say that in the opening and then discuss it a little, maybe from the perspective of giving the secretary of the treasury money and authority which is uncontrollable by the President because its under the control of the Congress and the exercise of its oversight? Rktect (talk) 00:29, 25 January 2009 (UTC)

We already have an article on the Troubled Assets Relief Program. Of course, that doesn't mean we can't also mention TARP here in this article. But, I'm not aware of what the connection is between TARP and UET. Have any reliable sources discussed a connection?Ferrylodge (talk) 00:53, 25 January 2009 (UTC)

If "it's about whether Congress can divide executive power, e.g. by giving some executive branch officials discretionary authority that is uncontrollable by the president" then "giving the secretary of the treasury money and authority which is uncontrollable by the President because its under the control of the Congress and the exercise of its oversight" would seem to make the theory mute. Rktect (talk) 01:02, 25 January 2009 (UTC)

You mean moot not mute. And either way, TARP does not give the Treasury Secretary money and authority uncontrollable by the President. As I told you yesterday, while I agree there are problems with TARP, they have to do with nondelegation doctrine, not the unitary executive. Simon Dodd (talk) 01:27, 25 January 2009 (UTC)

My understanding is that the Treasury Secretary has to come back to Congress for the second tranch. Congress got burned bad on the first tranch so they are being a little more careful about how much authority they are delegating. We agree probably not careful enough, but at least theoretically the authority is being delegated to the treasury Secretary and not the president. The unitary executive authority would say Congress can't make that distinctionRktect (talk) 02:14, 25 January 2009 (UTC)

Rktect, is there any reliable source that says that, or is that your own WP:Original research? I don't know of anything in the TARP legislation that says the Treasury Secretary is allowed to exercise discretion even if the President disagrees.Ferrylodge (talk) 02:45, 25 January 2009 (UTC)

The purposes of this Act are--(1) to immediately provide authority and facilities that the Secretary of the Treasury can use to restore liquidity and stability to the financial system of the United States; and...

The authorization is for the Secretary, not the President.I read through the act. It establishes a Congressional oversight board which the Secretary reports to. It establishes an Inspector General and Auditors for the program. The only presidential input mentioned is what happens if he vetoes the bill, or if the Treasury Secretary asks for more money then he has to appear before Congress with a certified request signed by the President. There is language allowing the Secretary to overide the provisions of this law if its urgently necessary to do so (which Paulson exercised) but nothing putting its authority under the control of the White House, except of course to the extent that political power is the ability to persuade.Rktect (talk) 11:03, 25 January 2009 (UTC)

Wikipedia policy WP:NPOV suggests that where a statement in support of a position is given, some effort should be made to cite the counter argument if such exists. Most of the citations regarding Executive power seem to assert the position that it the President does it, (and doesn't actually end up impeached) then in effect its legal, and he has sucessfully expanded the powers on the presidency. How about citing a few examples of where Congress has checked or attempted to check presidential excesses such as where the passage of TARP and Congressional authorization for actions by the Secretary of the Treasury under their oversight undercuts the Unitary Executive theory. Rktect (talk) 19:32, 25 January 2009 (UTC)

Despite your ongoing assertions to the contrary, TARP isn't at odds with uet, any more than the almost innumerable statutes that assign duties to named executive officers (see, e.g., 8 U.S.C. § 1103; 10 U.S.C. § 113(a); 26 U.S.C. § 179D(d)(1)(B); 28 U.S.C. § 547; 38 U.S.C. § 7802). The bare fact that the statute assigns duties to an inferior officer does not divest the President of control of that officer; the unitary executive does not require that Congress say only "it shall be done" and leave the President to assign the task as s/he sees fit; it isn't some kind of black box theory. Simon Dodd (talk) 20:00, 25 January 2009 (UTC)

The Unitary Executive theory says the President has exclusive control of his Executive Branch. In other words there is a Unitary Executive, just one. Congress says no, there are a number of Executives in the Executive Branch and they all are there to answer to us, to preserve protect and defend the Constitution and the laws of the United States which we legislate and they execute. In the case of the Secretary of the Treasury as regards TARP he has been authorized to do a thing by Congress, and to have their direct oversight rather than to be overseen by the President whom they have given no authority to in this act. Rktect (talk) 20:29, 25 January 2009 (UTC)

Rktect, let's assume for a moment that you are 100% correct. We still cannot include what you say in this article unless you cite a reliable source that makes the same argument that you're making. Otherwise, we would be doing WP:Original research, which is forbidden at Wikipedia. The threshold for inclusion of material at Wikipedia is verifiability, not truth. See WP:Truth.

Additionally, on December 19th, 2008, President Bush used his executive authority to declare that TARP funds may be spent on any program he personally deems necessary to avert the financial crisis, and declared Section 102 to be nonbinding. Is section 102 nonbinding? I don't know. I certainly have not seen any reliable source discuss section 102 in connection with the UET.Ferrylodge (talk) 20:34, 25 January 2009 (UTC)

Do we consider the comments of Congressional scholars interviewed by the media; ie; acting as pundits, to be reliable sources or do we have to wait for their remarks to be published in something other than a newspaper of magazine? This from the Federalist Society Sunday Reader:

The (Obama's OLC Pick) Johnsen on the Post-Bush Constitution: Professor Dawn Johnsen (Indiana U. and President-Elect Obama's pick to head the Office of Legal Counsel) posted her characteristically excellent piece What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses on ssrn; it's also in the Boston U. L. Rev. This is a thoughtful article on how the new chief executive should respond to constitutional overreaching by the present administration. (For a related piece, see Johnsen's American Constitution Society Issue Brief on the topic.) Johnsen's answer is balanced, well considered, and appropriately restrained; the piece reminds us--if there were any doubt--why she's Obama's choice to lead the OLC. This is an excellent read in its own right; it's an outright must-read considering Johnsen's role on the Obama team.

Johnsen starts by reviewing some of the more widely examined Bush administration excesses and reactions to those excesses in order to illustrate both problems: the administration's constitutional overreaching; and opponents' reactions that, in their (understandable) tenacity, themselves go too far and impinge upon legitimate executive authority.

She offers several examples; here's a particularly good one, if only because it seems so typical in today's debates:

The risk of such conflation can be seen, for example, in a December 2007 remark by Senator Sheldon Whitehouse. Whitehouse attacked the Bush administration for asserting the position that "[t]he President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II." Senator Whitehouse has earned commendation for his forceful and able critiques of the Bush administration abuses. Here, too, his concern is warranted, but he seems to misplace his objections. Presidents not only can, but they must determine whether their actions are lawful (subject of course, to appropriate judicial review). Moreover, in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress. The problem lies not with the fact that President Bush, with the help of his lawyers, assessed the scope of his constitutional authority before acting, but with the flawed content of his legal detemrinations and the ways in which he secretly acted upon them. . . .

Johnsen goes on to argue that the Bush administration is itself largely responsible for such "misplaced" attacks because of its excessive secrecy.

Johnsen then explores the President's interpretive authority and nonenforcement authority and places both in historical context. She argues that the President ought to have interpretive authority: "The better question, therefore, is not whether, but how the President should participate in the determination of constitutional meaning." And she argues for a "strong, but not irrebutable presumption" in favor of enforcing even those statutes that the executive objects to on constitutional grounds: "I conclude that the Constitution is best interpreted as creating a strong but not irrebutable presumption in favor of enforcement of constitutionally objectionable statutes." And if you're looking for specifics on positions of Obama's OLC pick, look here: "The Bush administration's 'unitary executive' and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights." (This selection gives us more insight into Obama's positions on these issues; see my previous post here.)

Johnson wraps up by arguing for executive checks (presumably including the OLC) and extra-executive checks on Article II powers, but also for defending legitimate Article II powers. She offers no specifics on these points outside of outlining her position in contradistinction to Bush administration practices. But that is certainly enough for now: The new administration will have its hands full simply undoing the Bush administration abuses.

Johnsen's article reminds me once again how thoughtful she is on executive power and the OLC's role. Read it as good scholarship; read it as thoughtful critique; or read it as a roadmap for the OLC in the Obama administration. Whatever your interest: Just read it.

White House Bails Out Automakers with TARP Funds The White House announced last Friday that it would bailout automakers using Congressionally allocated funds under the Troubled Asset Relief Program (or TARP). The NYT reports here.

The problem, as several have noted, is that automakers are not (obviously) "financial institutions" under the TARP, and they therefore do not (obviously) qualify for a TARP bailout. Eric Posner at the Volokh Conspiracy surveys the landscape here; Randy Picker at the U. Chicago Law School Faculty Blog posts, with links, here and here.

TARP defines "financial institutions" this way:

any institution, including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company, established and regulated under the laws of the United States or any State . . . .

Automakers not included. (And note that the White House effort targets GM, not GMAC, which might have put the program more obviously within TARP limits.)

Add to this that Congress declined to pass a bailout bill for automakers. This alone, of course, says nothing about Treasury's authority under TARP, but it strongly suggests Congressional intent not to bailout the automakers.

So where does the White House get authority to use TARP funds to bailout automakers? Here's perhaps a clue, from VP Cheney's interview with Chris Wallace on Sunday:

These aren't normal circumstances. We're in the midst of the worst financial crisis in recent memory. I think it's a good package. I think, you know, we talk about the Congress being critical. They had ample opportunity to deal with this issue and they failed. The president had no choice but to step in.

If the argument is just necessity and expediency that doesn't support UE authority,

If Cheney's comments reflect the administration's legal analysis--admittedly a significant "if"--all this talk about whether the automakers fit the definition of "financial institution" is irrelevant: The administration bailed them out using emergency, "Schmittian" powers--see Rick Hills's post last week on PrawfsBlawg--and simply used the TARP for cover. Hills, summarizing Vermeule:

There is no point in searching for a "legal" answer -- in the sense of parsing the text or legislative history for either a formal or purposive answer to the question. Instead, one simply has to decide which decision-maker has the power to decide when the rule runs out -- that is, determine the shape of the "exception," in Schmitt's term.

But the Schmittian approach doesn't fit well here, where the administration had to rely upon a Congressionally authorized funding program (because Congress, not the executive, has the power of the purse). We've seen this administration stretch its own inherent Article II powers in reponse to an emergency, but here we have the administration playing fast and loose with Congressional action in an area--spending--that's exclusively within Congress's bailiwick.

And finally--and paradoxically--the administration's automaker bailout seems to lend credence to the claim that the TARP runs afoul of the nondelegation doctrine: If TARP can be so stretched, it seems there are no Congressional standards in the bill at all. If that's so, Congress improperly delegated lawmaking authority. It seems as though the administration has created its own Constitutional Catch-22: Any reliance on TARP creates a nondelegation problem.

But even if the administration's action violates the Constitution, it's not clear that there's a judicial remedy. As some have asked: Who would have standing to challenge the automaker bailout, anyway?

SDS

Rktect (talk) 22:40, 25 January 2009 (UTC)

The Unitary Executive By Steven G. Calabresi, Christopher S. Yoo

The Senate must advise and consent to the appointment (under Article II) of top executive branch officers, which might suggest some power to remove consent.[citation needed]

I believe the best citation for this is given in Yoo's discussion of Parson's, and Shurtleffwhere the Supreme Court "regarded the constitutionality of Congressionaly imposed limits to the removal power to be an open question" "The President can remove for inefficiency, neglect, malfeasance in office and for no other cause."] The discussion is somewhat complicated and involved with a lot of case law and precedent being argued from partisan perspectives, reversed, language reinstated, especially where it gets into the Articles of Tenure. (see p235, p 246 and especially the statement of Wilson p 253) Rktect (talk) 15:58, 25 January 2009 (UTC)

Start with the basics

This article wades through some pretty deep weeds and it starts wading almost immediately.

I think there should be a concise definition of the UET (based on scholarly articles before we start talking about weak vs. strong and commentary.

The following definition existed in an earlier version. I think it is good and would like to see it restored to "The Theory" section.

The unitary executive theory (UET), in American political and legal discourse, is a theory of Constitutional interpretation that addresses aspects of the separation of powers. The theory argues that the power of Congress to divest the President of control of the executive branch is limited.

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language along with the Take Care Clause ("[The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."^[2]

The theory argues that the power of Congress to divest the President of control of the executive branch is limited.

Proponents of the theory argue that the President possesses all of the executive power and therefore he can control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power, not controlled by the President.^[3]

The judicial branch implications are that no part of the executive branch can sue another part because "the executive cannot sue himself." If the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.

After stating what it is, we can start talking about commentary and controversy.--Paul (talk) 14:50, 5 February 2009 (UTC)

I'm the one who put in the stuff about the weak version and the strong version, and I think it's very important. As Sunstein writes, no one disputes the weak version, and lots of people dispute the strong version. I think it's useful to distinguish between the two up front.Ferrylodge (talk) 17:42, 5 February 2009 (UTC)

I think that's right, and WP:LEAD suggests the same. THF (talk) 17:49, 5 February 2009 (UTC)

Okay, but the current version has all of these concepts too intertwined and starts discussing strong vs. weak before even stating what the original theory said, and never really makes clear what the strong and weak versions are. When I have the time, I'll draft a rewrite of this section attempting to make things more clear.--Paul (talk) 18:02, 5 February 2009 (UTC)

The changes suggested above indicate a fundamental problem with understanding the Constitution. To begin with Congress has all the power Article 1 Section 8. It has the exclusive power to legislate. The Presidents job is to preserve, protect and defend the Constitution and the laws of the United States which are made by Congess. If the Congess decides to stop funding a department of the Executive branch such as the defense department it goes away. It has done that in the past. If the Congress decides to change the number of judges in the Supreme Court they go away. it has done that in the past. If the Congress decides to take power away from the President that he appears to be ursurping it can and has done that in the past. There is no separation of powers in the Constitution. There is no judicial review there either. The Congress has the power, the President has the responsibility to follow their instructions on pain of impeachment.

In practice that is all well and good, but when the President refuses to obey the law or to follow it, and the Congress does nothing about it for whatever reasons, then rather than let it stand the people may vote someone else in and let them restore law and order. Rktect (talk) 16:34, 5 February 2009 (UTC)

• This article's fortunes should not be held hostage to the idiosyncratic and seriously flawed view of the Constiutution that you keep advancing.- Simon Dodd { U·T·C·WP:LAW } 16:43, 5 February 2009 (UTC)

• Before we start arguing whether the UET has any merit, as an encyclopedia, it is incumbent upon us to say what it is. It doesn't matter that anyone disagrees with the statement of the UET above, it is only stating what scholars have said the UET is. This is an encyclopedia not a blog, bulletin board, or debating society.--Paul (talk) 17:05, 5 February 2009 (UTC)

• Rktect, you are simply wrong. Congress does not possess all the power. It only possesses legislative power. The Constitution says: "The executive Power shall be vested in a President of the United States of America." The Constitution also says "he shall have Power to Grant Reprieves and Pardons....He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties....The President shall have Power to fill up all Vacancies." Read the 25th Amendment. It says over and over again that the President has powers and duties (e.g. when "the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President"). Likewise, the judiciary has power too: "The judicial Power of the United States, shall be vested in one supreme Court."Ferrylodge (talk) 17:40, 5 February 2009 (UTC)

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The President doesn't have power, he has responsibility. Its his job to preserve protect and defend the Constitution and the laws of the United States. As you note, when he does have power its with the advice and consent of the Senate, ie; Congress decides, the President follows instructions. Neither Separation of powers nor Judicial review are written into the Constitution, they have been delegated by Congress. Congress can if it wishes withold funding for any function of the Executive Branch, disband the Defense Department and downsize the Supreme Court, something it has done many times in the past. The President is only Commander in Chief when called into actual service and even then he is subject to the rules Congress makes for the military. Congress could if it wished turn the Whitehouse into a post office. Rktect (talk) 03:16, 6 February 2009 (UTC)

That's absolutely correct: Congress could indeed turn the White House into a Post Office. However, Congress cannot designate the Speaker of the House as Commander of the armed forces, and give Ms. Pelosi power to order around Barack Obama. There are limits to what Congress can do. Get used to it. It's been going on for a couple centuries now. Congress cannot force the President to nominate any particular person to the Supreme Court. Congress cannot decide that the Attorney General will be elected separate from the President. Congress is not omnipotent.Ferrylodge (talk) 03:20, 6 February 2009 (UTC)

Come on, people. WP:NOT#CHAT. Rktect, this isn't a blog for you to comment on. Your opinions are irrelevant to the article, unless you've been published in a RS somewhere, and then we can deal with the WEIGHT issue. Ferrylodge, don't encourage him. THF (talk) 03:23, 6 February 2009 (UTC)

For God's sake, Rktect, would you stop quoting At. 1 § 8 as if you think we aren't familiar with it? That's the second time you've done so in as many weeks. We know what it says. What we don't know is how you manage to impute this bizarre meaning you've concocted, or why that kooky theory is relevant to this article.- Simon Dodd { U·T·C·WP:LAW } 04:22, 6 February 2009 (UTC)

The Theory

As it presently exists in the article is a POV that is widely diasagreed with and should have its counterpoints represnted equally strongly immediately thereafter.Rktect (talk) 13:36, 6 February 2009 (UTC)

This is not a POV, it is what the theory is, said description taken from a scholarly article on the subject. UET has unfortunately become the "Nazi" of constitutional law, with people turning away in horror as they prepare to stamp it out. But that is not the concern of an encyclopedia, which should define what a thing is and perhaps mention a few scholarly opinions about it. Nothing more.--Paul (talk) 14:41, 6 February 2009 (UTC)

Any time you have a single source, thats a POV. Why not use what other constiutional scholars such as Bruce Fein or John Dean have to say on a point by point basis. Thats what Wikipedia would normally expect in a good article. You could discuss what is said about it from several different articles with a significent improvement in quality. Rktect (talk) 19:14, 6 February 2009 (UTC)

Where on earth do you get the idea that Fein or Dean are constitutional scholars rather than columnists and polemicists?- Simon Dodd { U·T·C·WP:LAW } 20:49, 6 February 2009 (UTC)

Bill Moyers

Bruce Fein

Author of the New Book, Constitutional Peril: The Life and Death

Struggle of Our Constitution and Democracy, to Speak at ACLU of Massachusetts Forum

Please join us for a provocative conversation with author and constitutional scholar Bruce Fein as he discusses his new book, Constitutional Peril: The Life and Death Struggle of Our Constitution and Democracy.

When: November 12, 2008 Where: Law Offices of Goodwin Procter, 53 State Street, Boston Time: 8:00 a.m.

Bruce Fein is a lawyer who specializes in constitutional and international law. He served as general counsel to the Federal Communications Commission and then as deputy attorney general in the U.S. Department of Justice during the Reagan administration. A regular contributor to the Washington Times and Politico.com, Mr. Fein has also been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institution, and an adjunct professor at George Washington University.

Mr. Fein has been advocate of the impeachment of President Bush, has testified before Congress on signing statements, Executive Privilege, and civil liberties. He most recently was quoted in The New York Times Magazine

article, After the Imperial Presidency, by Jonathan Mahler.

Fein is a conservative constitutional scholar outraged by ideas like the UET.

John W. Dean, is a FindLaw columnist, and a former counsel to the president.

Constitutional scholars including Johnathan Turly, Bruce Fein and John Dean have argued that the Constitution does not grant the President the right to make his own laws or refuse to execute the laws made by Congress. Rktect (talk) 21:12, 6 February 2009 (UTC)

Neither of them are constitutional scholars. And while Jon Turley is, I find it very hard to imagine that he has ever been so foolish as to argue that the President cannot, in any circumstances, refuse to execute a law made by Congress (I find it hard to believe that anyone has made such a claim; that Congress can make an unconstitutional statute and the President can refuse to enforce it is uncontroversial -- as, for that matter, is prosecutorial discretion, which is exactly the same thing: refusing to execute a statute. No one - so far as I know, no one ever - has claimed that prosecutorial discretion violates the Constitution). And nobody argues that the President can "make his own laws." We have a veritable field of strawmen, some of them set up by Dean and Fein, but none of them of any relevance to the issues raised by this article.- Simon Dodd { U·T·C·WP:LAW } 22:10, 6 February 2009 (UTC)

We have many times in our history had presidents who refused to obey the law. Jackson, Lincoln, Johnson, Nixon, Bush come to mind immediately. That doesn't make it legal or constitutional or set a precedent that lets the next guy go a step further.

I guess the reason everyone else considers them constitutional scholars and honors them for their reading of the law and opinions on it and you don't is that you have a different definition of the law than they do. In your concept laws are more like guidelines and suggestions.

The way laws work is that if they aren't enforced they cease to be laws. Your concept is that if you can get people to consider themselves above the law, make their own and break everyone elses than thats a step toward deregulation which you consider a good thing. Eventually you get to where you have no laws and then you have no crimes.

The moment a President refuses to execute a law made by Congress he breaks his oath to preserved protect and defend the Constitution and the laws of the United States, becomes a criminal, and should consider himself subject to impeachment.

Congress should impeach him and then he should stand trial for whatever law he broke and crime he committed. If that doesn't happen then Congress is in dereliction of duty and needs to be replaced.

No law that Congress makes is unconstitutional until it comes before the Supreme court and they strike it down. There is no "prosecutorial discretion". Breaking the law is breaing the law regardless of who does it. As soon as a president starts advising his department heads that they should obey his executive orders instead of the laws of Congress, Congrss should impeach him.

I fully expect Holder will begin investigations of the laws broken by the Bush administration as soon as Obama fixes the economy, ends the wars, brings the troops home and fixes global warming and peak oil Rktect (talk) 00:18, 7 February 2009 (UTC)

Gentlemen, the talk page is an unreadable mess in part because Rktect publishes these rants in violation of WP:NOT#CHAT and everyone else violates WP:NOT#CHAT to point out how he's wrong. If Rktect is going to ignore Wiki policy and abuse the talk page like this, the least everyone else can do is to ignore him rather than to stoop to his level. THF (talk) 00:39, 7 February 2009 (UTC)