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Addington Testimony and The Unitary Executive

Steven G. Calabresi
Northwestern University Law Professor; Author, "The Unitary Executive"
Friday, June 27, 2008 10:00 AM

Northwestern University law professor Steven G. Calabresi, author of " The Unitary Executive: Presidential Power From Washington to Bush," which comes out next month, was online Friday, June 27 at 10 a.m. ET to discuss congressional testimony by former Office of Legal Counsel lawyer John C. Yoo and vice presidential chief of staff David Addington, and this administration's concept of executive branch authority.

The transcript follows.

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Cincinnati: What do you think will be the future of the unitary executive theory following the Bush administration? Has it gotten to the point that it is institutionalized and thus immune from the actions of one administration, or has this administration done serious damage to the use of power by our next president?

Steven G. Calabresi: This is Steve Calabresi entering the discussion. I think the idea of the unitary executive is one that has been espoused in one way or another by all 43 of our presidents so I do think it will survive this administration intact. Some of the more aggressive claims as to foreign policy power may not survive.

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Arlington, Va.: In what branch is the Office of the Vice President? I would say the legislative branch, as that is his only Constitutional responsibility. What branch pays his salary?

Steven G. Calabresi: The Vice President is a constitutional anomaly because he serves simultaneously as a legislative and an executive officer. As a matter of tradition and practice the vice president has been treated as a member of the president's administration and of the executive branch for most of our history. This is desirable because it prepares the vice president to succeed to the presidency in the event that becomes necessary.

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Princeton, N.J.: Bush points to the Article Two war powers and the bill to use force in Iraq as justification of his secret wiretapping program, which clearly violated FISA. The trouble with that argument is that -- given that neither of these sources mentions surveillance -- the exact same argument could be used to justify almost anything. For example, Bush (and especially Cheney) many times have said that those who oppose their war policies give aid and comfort to the enemy. Using his argument, he could arrest these people (you and I) and hold them without trial. From a legal aspect, wasn't this point settled by Justice Jackson in the Steel Mills case during the Korean War?

Steven G. Calabresi: I think the Bush Administration's surveillance efforts are authorized by the Authorization for the Use of Force resolution which Congress passed after the Sept. 11 attacks. That resolution authorized the use of all "necessary and appropriate" means in waging the war on terror. Ever first year law student learns that the great Chief Justice John Marshall construed the phrase "necessary and proper" in the Constitution to mean only "convenient to" or "useful to" and not "indispensable." This phrase is therefore a legal term of art in American law. Congress by statute delegated President bush the power to pursue terrorists by an convenient or useful means. Wiretapping is one such means of waging the war on terror.

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Philadelphia: I am looking forward to your book. Do you have an opinion yourself, or do you explore the issue objectively? If you do have an opinion, I would like to know where you put the line at what is acceptable executive authority.

Steven G. Calabresi: My book focuses on presidential power to control executive branch subordinates through removal or by giving binding directions. I think the president does have that power. I do not address the war powers issues that President Bush has raised. The president may also have such powers, but he certainly has the power to remove and direct subordinates.

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Charles Town, W.Va.: The unitary presidency focuses on the role of the president, excluding encroachments on that role by the legislative and judicial branches of government. In so doing, it concentrates power and limits checks and balances. This would work well in a parliamentary system, where the executive can be controlled with a vote of no confidence, but because we only have the drastic recourse of impeachment, doesn't this concentrate too much power in the executive? "We the People" seem to get diminished, and the president is raised above the people with unchecked powers. How is this democracy?

Steven G. Calabresi: The theory of the unitary executive as I understand it is a theory about who has the executive power -- the president and not his subordinates. It is not necessarily also a theory about how extensive the executive power is. This is the way the theory of the unitary executive was understood in the Reagan and first Bush Administrations. The current Administration has attempted to broaden the theory of the unitary executive by saying the executive power conferred by the Constitution comprehends inherent foreign policy powers. The Administration may or may not be right on. I have not decided. I think the question is irrelevant because I think Congress delegated President Bush all the powers he has claimed when it passed the Authorization for the Use of Force after 9/11.

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Hampton, Va.: Sir, in regard to executive power: The most cited is being "Commander in Chief" of the armed forces, and that is used in signing statements, but the Constitution has only one line on the president and the military -- it simply says he is the commander. Meanwhile, Congress has six lines that give it pretty broad powers over the military. And although the president normally is credited with foreign affairs, his only directly granted powers are to make treaties and appoint ambassadors, while Congress is directly granted several foreign affairs powers. I could go on for more, but I really can't find any black-text basis for assuming the president has massive powers, while I find a lot of direct constitutional evidence that says the Legislative branch has at least some direct authority in what unitary theorists assume to be executive areas.

Steven G. Calabresi: The President has all of "the executive Power" except for those executive powers particularly described and given to Congress. Thus current case law says that the president has the power to abrogate treaties on his own even though the Constitution does not mention that specifically and even though the Senate's concurrence is required to make a treaty. The executive power was understood as being quite broad in 1787, and it is given to the president. Moreover, the Constitution says Congress can act only when both houses concur and the courts can act only when there is a case and controversy. Anything the government does that does not involve bicameralism and presentment or adjudication of a case or controversy is executive and is in the president's domain.

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Fort Lauderdale, Fla.: What is the status of the war powers act? Why do you think this Congress has not attempted to strengthen it?

Steven G. Calabresi: I think that the War Powers Act is an effort by passage of an ordinary statute to regulate the powers the Constitution itself gives to the President and the Congress. This is not permissible. Congress can no more limit the president's war powers by statute than it could take away his veto by statute. That being said I think the Constitution does contemplate that Congress must declare war before wars are begun, and I think this ought to have been done with the Korean War for example. A harder question is the Vietnam War which was authorized by pretty sweeping language in the Gulf of Tonkin Resolution. Here Congress essentially authorized a war without saying the words "we declare war." I am not convinced Congress needs to use a sort of Simon says formulation to start a war.

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Chapel Hill, N.C.: Taking your approach that the President has the right to remove and direct executive branch employees to the extreme, does the president have the right to completely politicize the whole of the executive branch? Can he replace employees without cause? Are the laws against nepotism invalid? Or do you think there is some restraint that can be imposed on the chief executive?

Steven G. Calabresi: Congress has the power to create offices, departments, and agencies and to set rules for governing who is eligible to be appointed by the president or his subordinates to run them. I thus think the Civil Service laws providing for merit criteria in hiring are perfectly constitution. I also think anti-nepotism laws are constitutional. I think the president can constitutional remove any of his subordinates for policy or constitutional reasons. The check against this power being abused is that the public will scream bloody murder if it is abused just as the public would complain if the president appointed only his college drinking buddies to the cabinet. Any power can in theory be abused. The recent uproar over the removal of US Attorneys which led to the resignation of former Attorney General Alberto Gonzales is a good example of how the pressure of public opinion can restrain presidential exercises of power.

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Chevy Chase, Md.: A friend of mine on Capitol Hill insists that the origin of the "Unitary Executive" was with Bill Clinton, because he tended to be somewhat defiant against his Republican Congress. I see it as standing up to political opponents rather than attempting to acquire more power in the executive. Is there a distinction? Thanks for your response.

Steven G. Calabresi: After a shaky start, President Clinton did become quite good about preserving the unitary executive and in asserting his control over all of his subordinates in the executive branch. President Clinton's emersion in the details of policy matters led him to supervise subordinates closely.

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Freising, Germany: In your historical examination of presidential power, how important was the personality and leadership style in determining how much control was exerted over policy-making subordinates? For instance, an article in The Washington Post mentions that Vice President Cheney is considered to have "muscular views on presidential power."

Steven G. Calabresi: Personality and leadership style was important in my survey of the 43 presidents. Some presidents were especially diligent in supervising subordinates: George Washington, Andrew Jackson, James K. Polk, Theodore Roosevelt, and Bill Clinton for example. Every president has tried to do this to some degree, but it is true that some presidents have worked at it harder than others.

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Hampton, Va.:"Anything the government does that does not involve bicameralism and presentment or adjudication of a case or controversy is executive and is in the president's domain." Whoa, I thought that unless it was granted specifically by the Constitution, or based in the Constitution and enacted in law, then it was out of any branch's domain and hence not part of the government. Aren't you arbitrarily granting the president powers beyond his Constitutional description?

Steven G. Calabresi: I think the federal government is one of limited and enumerated powers and that some of what it currently does is in excess of those powers. But, if the federal government can do it, and if it is not an action done by bicameralism and presentment or through adjudication of a case or controversy then by process of elimination it must be an exercise of executive power. And the Constitution gives all, not some, of the executive power to the president.

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Charles Town, W.Va.: Who chooses how money is spent by the executive? Congress can appropriate money to the various agencies of the government, but can they also direct how that money is to be spent? Does the unitary executive direct the spending of the money, and can he ignore directives from Congress?

Steven G. Calabresi: Congress has the power of the purse, which has always been the legislatures most formidable power. They can refuse to fund with exacting specificity. Congress ended our involvement in the Vietnam war by refusing to spend any more money on it. Congress even forced three named officials in Franklin Roosevelt's administration to eventually resign because it would not appropriate their salaries! At the end of the day, even without impeachment, Congress is the most powerful branch because it and it alone has the power of the purse.

I have to sign off this discussion now. Thanks all for the good questions. My book: The Unitary Executive: Presidential Power from Washington to Bush answers more questions about all of this and will be published in two weeks.

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