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Unitary Executive Theory vs. Judiciary Act of 1789


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Does the President have civilian authority and military authority over citizens?

 

The fact that we're at war does not mean that our normal constitutional rules do not apply.Even in wartime, especially in wartime, the Founders wanted to place limits on the ability of the executive to deprive citizens of liberty. And they were concerned, based on the history of the British Crown, of the possibility that an unchecked executive using excuses based on national security, using the military power to render that superior to civilian authorities, could exercise the exact type of power here in the United States. Never before in the nation's history has the President been granted a blank check to do whatever he wants to American citizens. The core of American democracy is is that the Government cannot take citizens in this country off the street and lock them up in jail forever without a trial. This President appears to believe that he can pick and choose which laws to obey and need never submit to congressional or judicial oversight.

 

The unitary executive theory places the President above the law. Under this theory, independent counsel appointed to investigate Presidential misdeeds would be unconstitutional. The theory also justifies a President who would overstep Acts of Congress and the Constitution when acting as Commander in Chief. Only the Bush Administration has based any of it's actions on the claimed unitary executive theory. The President has the power to wiretap American citizens without approval from the courts or Congress.

 

Here is President Bush's interpretations of the unitary executive theory:

 

President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006"

 

Today, I have signed into law H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006." The Act provides resources needed to fight the war on terror, help citizens of the Gulf States recover from devastating hurricanes, and protect Americans from a potential influenza pandemic.

 

Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.

 

Section 8059 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2006 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8059 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President's constitutional authority as Commander in Chief.

 

A proviso in the Act's appropriation for "Operation and Maintenance, Defense-Wide" purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(B), 8032, 8037(B), and 8100 purport to specify the content of portions of future budget requests to the Congress. The executive branch shall construe these provisions relating to planning and making of budget recommendations in a manner consistent with the President's constitutional authority to require the opinions of the heads of departments, to supervise the unitary executive branch, and to recommend for congressional consideration such measures as the President shall judge necessary and expedient.

 

Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.

 

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.

 

The executive branch shall construe provisions of the Act relating to race, ethnicity, gender, and State residency, such as sections 8014, 8020 and 8057, in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment.

 

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

Language in Division B of the Act, under the heading "Office of Justice Programs, State and Local Law Enforcement Assistance," purports to require the Attorney General to consult congressional committees prior to allocating appropriations for expenditure to execute the law. Because the President's constitutional authority to supervise the unitary executive branch and take care that the laws be faithfully executed cannot be made by law subject to a requirement to consult with congressional committees or to involve them in executive decision-making, the executive branch shall construe the provision to require only notification. At the same time, the Attorney General shall, as a matter of comity between the executive and legislative branches, seek and consider the views of appropriate committees in this matter as the Attorney General deems appropriate.

 

Certain provisions in the Act purport to allocate funds for specified purposes as set forth in the joint explanatory statement of managers that accompanied the Act or other Acts; to make changes in statements of managers that accompanied various appropriations bills reported from conferences in the past; or to direct compliance with a committee report. Such provisions include section 8044 in Division A, and sections 5022, 5023, and 5024 and language under the heading "Natural Resources Conservation Service, Conservation Operations" in Division B, of the Act. Other provisions of the Act, such as sections 8073 and 8082 in Division A, purport to give binding effect to legislative documents not presented to the President. The executive branch shall construe all these provisions in a manner consistent with the bicameral passage and presentment requirements of the Constitution for the making of a law.

 

GEORGE W. BUSH

 

THE WHITE HOUSE,

 

December 30, 2005.

 

 

President's Statement on Signing of Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006

 

Today, I have signed into law H.R. 4939, the "Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006." The Act provides additional resources needed to fight the war on terror, help citizens of the Gulf States recover from devastating hurricanes, and protect Americans from a potential influenza pandemic.

 

Sections 1209 and 2202 of the Act prohibit use of certain funds appropriated in the Act to initiate new start programs unless the congressional defense committees receive advance written notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 1209 and 2202 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.

 

Subsection 1304(a) of the Act amends section 550 of Public Law 109-102 to purport to require the President to consult with committees of the Congress prior to exercising authority granted to the President by section 550. Subsection 1304(B) purports to require the Secretary of State to consult such committees prior to exercising authority under that provision. Because the President's constitutional authority to supervise the unitary executive branch and take care that the laws be faithfully executed cannot be made by law subject to a requirement to consult with congressional committees or to involve them in executive decision-making, the executive branch shall construe the references in the provisions to consulting to require only notification.

 

The provision under the heading, "Joint Explosive Device Defeat Fund," Department of Defense-Military, that calls for the reporting to congressional committees of information that may include highly sensitive and classified national security information, will be construed consistently with the President's constitutional responsibility to control the dissemination of such information.

 

The executive branch shall construe the provision in the Act under the heading "Disaster Relief," Federal Emergency Management Agency, Department of Homeland Security, that purports to require the Secretary of Homeland Security to submit a housing proposal and expenditure plan for congressional committee approval as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.

 

Sections 7030 through 7033 of the Act, inclusive, purport to make changes in or in relation to statements of managers that accompanied various appropriations bills reported from House-Senate conferences in the past. Also, a provision in chapter 9 of the Act under the heading "Emergency Relief Program," Federal Highway Administration, Department of Transportation, purports to give binding effect to a document not presented to the President. The executive branch shall construe these provisions in a manner consistent with the bicameral passage and presentment requirements of the Constitution for the making of a law.

 

GEORGE W. BUSH

 

THE WHITE HOUSE,

 

June 15, 2006.

 

 

Presidential politics is like the weather. It retains its interest for us all, just because it is often unpredictable in spite of our best efforts to control it. I believe that the Unitary Executive Theory will be repudiated.

 

The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land." The Constitution is the highest form of law in the American legal system.

 

The Judiciary Act of 1789

 

One of the first acts of the new Congress was to establish a federal court system in the Judiciary Act of 1789. The Constitution provided that the judicial branch should be composed of one Supreme Court and such inferior courts as Congress from time to time established. But unlike the legislative provisions, in which the framers clearly spelled out the powers of the Congress, Article III of the Constitution is rather vague on just what the judicial powers should be.

 

Marbury v. Madison, held that the Court is the final arbiter of what is and is not the law. This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams' Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury's and several other men's commissions. Being unable to assume the appointed offices without the commission documents, Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury. The Supreme Court denied Marbury's petition, holding that the statute upon which he based his claim was unconstitutional.

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I am not worried about President Bush. What he did was perfectly legal. The Democrats in office censure him. The Supreme Court has stated no objections. Therefore, I can only conclude that the Executive Power is becoming more seductive to both parties that eventually our Constitution will be thrown out as obsolete thinking. The First Candidate that justly discusses the Honor of serving the American people has got my vote.

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