Unitary Executive
Supreme Retort
The New Republic, Feb. 20, 2006, at 4.
I think there is serious confusion as to what the theory of the “unitary executive” entails (“Against Alito,” January 30). Justice Antonin Scalia’s famous dissent in Morrison v. Olson is an example of one interpretation of the theory, which holds that executive power lies with the president, and that no “person whose actions are not fully with the supervision and control” of the president can seize it. The issue in Morrison was the law that provided for the appointment of an independent counsel. More specifically, the Court faced the question of whether, via a statute, Congress can create an executive office that is not under the direct control of the president. Scalia was vindicated on this subject when Congress refused to renew the statute after the Clinton- Lewinsky fiasco and allegations of overreaching by Kenneth Starr. This is what Samuel Alito was likely referring to when he stated that “all federal executive power is vested by the Constitution in the president.” Insofar as some may think that the “unitary executive” theory as Alito invoked it stands for the proposition that the president is above constitutionally enacted laws, they are certainly in the minority.
The first line of Article II of the U.S. Constitution states, “The executive power shall be vested in a President of the United States of America.” Does “the executive power” mean “all” of the executive power or just “some”? Compare that with the more limiting language of Article I: “All legislative powers herein granted shall be vested in a Congress of the United States.” There is a difference, and it appears the Founding Fathers knew how to go about limiting powers when they wanted to do so. There was nothing misleading or evasive about Judge Alito’s answers about the “unitary executive.”
The New Republic, Feb. 20, 2006, at 4.
I think there is serious confusion as to what the theory of the “unitary executive” entails (“Against Alito,” January 30). Justice Antonin Scalia’s famous dissent in Morrison v. Olson is an example of one interpretation of the theory, which holds that executive power lies with the president, and that no “person whose actions are not fully with the supervision and control” of the president can seize it. The issue in Morrison was the law that provided for the appointment of an independent counsel. More specifically, the Court faced the question of whether, via a statute, Congress can create an executive office that is not under the direct control of the president. Scalia was vindicated on this subject when Congress refused to renew the statute after the Clinton- Lewinsky fiasco and allegations of overreaching by Kenneth Starr. This is what Samuel Alito was likely referring to when he stated that “all federal executive power is vested by the Constitution in the president.” Insofar as some may think that the “unitary executive” theory as Alito invoked it stands for the proposition that the president is above constitutionally enacted laws, they are certainly in the minority.
The first line of Article II of the U.S. Constitution states, “The executive power shall be vested in a President of the United States of America.” Does “the executive power” mean “all” of the executive power or just “some”? Compare that with the more limiting language of Article I: “All legislative powers herein granted shall be vested in a Congress of the United States.” There is a difference, and it appears the Founding Fathers knew how to go about limiting powers when they wanted to do so. There was nothing misleading or evasive about Judge Alito’s answers about the “unitary executive.”
posted by HR at 6:35 PM
