More on the theme of Saturday’s post — the Bush administration’s power grab and its theory of a unitary executive.
Charlie Savage in The Boston Globe talks to constitutional scholars about the theoretical unpinnings of the Bush docrine and misue of the historical record by Vice President Dick Cheney and others to justify their approach.
To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This “originalist” approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.
Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president’s wartime powers: Federalist 69.
The scholars say defenders of the unitary executive theory have relied on selective evidence to press their view, misreading Federalist 70 — the scholars say it was meant to explain “explain why the founders decided to put just one president atop the executive branch instead of a council. The essay says nothing about limiting the power of Congress to pass laws regulating how the executive branch carries out its responsibilities for protecting national security-a power the Constitution gives Congress in Article I.”
But Federal 69 is key, the scholars say”
Alexander Hamilton, wrote Federalist 69 in 1788, as the nation was debating whether to ratify the Constitution. At the time, many Americans feared that the proposed Constitution might concentrate too much power in the president. Having just fought a war to rid themselves of the British king, they did not want to end up with a home-grown dictator.
The Constitution called for the American president, like the British king, to oversee the nation’s military. But in Federalist 69, Hamilton explained that the American commander in chief’s powers would be subject to strong checks and balances, including submission to regulation by laws passed by Congress. Hamilton describes the commander in chief as “nothing more” than the “first general” in the military hierarchy. The commander in chief’s powers are “much inferior” to a king because all the power to declare war and to create and regulate armies is given instead to Congress, he explained.
Some state governors, Hamilton noted, had greater security powers as head of their state militias than the president would. “It may well be a question whether (the constitutions) of New Hampshire and Massachusetts, in particular, do not … confer larger powers upon their respective governors than could be claimed by a president of the United States.”
There are scholars — generally affiliated in some way with the president or vice president — who read the Federalist Papers differently, but they seem to be in the minority, with many conservatives who embrace the doctrine of originalism (or attempting to divine the original intent of the founders) questioning the administration’s reading.
The South Brunswick Post, The Cranbury Press
Hank Kalet 