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March 19, 2008

BOOK REVIEW: ‘Unitary Executive’ Theory Doesn’t Hold Water

By Candace Talmadge

Although John McKenzie’s Absolute Power – How the Unitary Executive is Undermining the Constitution is brief, it is by no means easy to follow. It’s not sexy or funny. It explores a theory about the U.S. Constitution and the varying roles of the three branches of government.

Lower those glazed eyes! Yes, this is dull, but understanding the topic is absolutely imperative for those who care about how the U.S. Constitution actually sets up our republic compared with the grandiose claims of those who espouse the “unitary executive” theory of constitutional government. There is a huge difference.

Exploring this difference is MacKenzie, who covered the U.S. Supreme Court for The Washington Post between 1956 through 1977, and as an editorial writer for The New York Times between 1977 and 1997. He’s also been a visiting professor and scholar at New York University’s School of Law, and published The Appearance of Justice in 1974.

The “unitary executive,” the author begins, has been the legal theory underpinning the Bush Administration’s unprecedented power grab since the U.S. terrorist attacks on Sept. 11, 2001.

What does the phrase mean and where does it come from? The author reviews the debate about presidential powers between Alexander Hamilton and James Madison in the Federalist Papers. This is the ostensible foundation for the entire theory, according to those who support it.

MacKenzie also discusses two camps of “unitary executive” theory supporters. The moderates emerged during Ronald Reagan’s second term of office between 1985 and 1989 espousing “a domestic and bureaucratic brand of exclusive executive control.”

Then there are firebrand “unitary executive” supporters, headed by Vice President Richard Cheney, the administration’s chief water boy for the “unitary executive” in practice, or what MacKenzie calls “the global, royal, commander-in-chief unilateralist variety.”

Does the author’s description sound a little extreme? MacKenzie quotes Cheney on the topic of presidential power. “The chief executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws,” Cheney wrote in his dissent to the 1987 U.S. House Report on the Iran-Contra scandal.

(Would any Barry Goldwater conservative have chosen the Bush-Cheney ticket if that little gem had been made public, say, back in 2000? Perhaps our VP also thinks the rest of us should curtsy or tug at our forelocks in Bush’s Royal Presence.)

MacKenzie also outlines two U.S. Supreme Court decisions, Morrison v. Olson in 1988 and Hamdan v. Rumsfeld in 2006, which, he argues, pretty much put the “unitary executive” theory out to pasture – despite the die-hards who keep cheerleading for it.

The result of putting this extremist view of the unitary executive in practice are gross violations of U.S. laws on topics like torture and presidential signing statements that relegate congressional legislation to virtual irrelevance by asserting that Bush will simply ignore the laws if he so chooses. MacKenzie looks at the actual history of said statements and reaches the conclusion that Bush and his minions have given them a bad name and used them more often than all of his presidential predecessors put together.

Ultimately, and no doubt ironically, the author notes that in pushing hard to grab as much power for the presidency based on the unitary executive, supporters of this theory may actually have weakened the office. Even so, he’s not optimistic that anyone who follows Bush will be willing to relinquish the presidential powers that have been expanded out of proportion with the office’s actual constitutional role.

Title: Absolute Power – How the Unitary Executive is Undermining the Constitution

Author: John P. MacKenzie

Publisher: The Century Foundation Press

Publication Date: Available

List price: $14.95 (softcover)

Pages: 79

ISBN: 978-0-87078-511-5 

© 2008 North Star Writers Group. May not be republished without permission.

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