Monday, January 16, 2006

As a Justice Department Reaganite, Supreme Court nominee Samuel A. Alito, Jr., defended the president’s relevance to legislative history and a unitary executive branch where all officials executing federal statutes march to the same drummer. Senate Democrats and their handpicked witnesses during Judge Alito’s confirmation hearings insisted that both principles constitute presidential usurpations. Their indictment is unpersuasive.

The Supreme Court interprets a federal statute according to the intent of its makers. On that score, most of the Justices regularly examine congressional committee reports and floor statements by members, although neither are voted on by Congress or presented to the president for his approval or veto. The reports and statements, however, are thought relevant (but not dispositive) as to the meaning of ambiguous statutory language.

The president is a constitutional partner with Congress in fashioning legislation. Every bill must be presented for his signature, veto or inaction (in which event the bill becomes law). Indeed, the Supreme Court held in Immigration and Naturalization Service v. Chadha (1983) that the legislative veto was unconstitutional because it represented an attempt by Congress to legislate without presenting a bill for the president’s consideration. The president, moreover, routinely negotiates with Congress over the language of a statute, for example, President George W. Bush’s discussions with Sen. John McCain over a bill prohibiting cruel, degrading or inhumane treatment of Guantanamo Bay detainees. Since legislation is a joint venture between the president and Congress, the intent of both branches should be consulted to determine the intent of an unclear statute.

As a Justice Department attorney, Judge Alito sensibly urged on the White House a policy of signing statements to elaborate the president’s understanding of bills he was approving. The statements should enjoy a dignity comparable to committee reports or member statements in judicial interpretations of federal statutes.

The Supreme Court has yet to pronounce on their interpretive weight. But the principle of signing statements accompanying legislation is indistinguishable from time-honored canons of constitutional interpretation. Courts consult both the constitutional drafters in Philadelphia in 1787 as well as state ratifying conventions. Both were indispensable partners in the adoption of the Constitution. With regard to interpreting amendments, both the intent of the proposing Congress and the understanding of the ratifying states are guideposts. Accordingly, presidential signing statements as part of legislative histories relevant to judicial interpretations of statutes are unalarming and constitutionally irreproachable.

Ditto for the idea of a unitary executive branch in which every important executive official is removable at the will of the president to insure a coherent and evenhanded of administration of the laws. If executive branch mavericks or rebels are protected from removal for warring against the president’s policies, chaos and irresponsibility are risked. Imagine the absurdity, for example, of a secretary of defense opposed to President Bush’s war policies in Iraq or Afghanistan.

The Founding Fathers understood that a plural executive would confound accountability and the identification of officials responsible for wrongdoing. Alexander Hamilton amplified in Federalist 70: “[T]he plurality of the executive tends to deprive the people of the two greatest securities they can have for the faithful execution of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.” Article II, section 3 of the Constitution thus entrusts the faithful execution of the laws to the president alone. James Madison further explained in the First Congress: “Vest the power in the Senate jointly with the President and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence shall be preserved; the lowest officers, the middle grade, and the highest will depend, as they ought, on the President, and the President on the community.”

A unitary executive was first violated by the Radical Reconstruction Congress animated by hostility towards President Andrew Johnson. Radical Republicans enacted the Tenure of Office Act to prevent the president from removing the secretary of war and other Cabinet appointees of President Abraham Lincoln without the consent of the Senate. Congress wished to wrest from the chief executive control over Reconstruction. President Johnson was impeached by the House of Representatives for unilaterally removing the secretary of war, but was acquitted by the Senate. The Supreme Court later declared the Tenure of Office Act unconstitutional in Myers v. United States (1926).

But in Humphrey’s Executor (1935), alarmed by the swelling powers of President Franklin D. Roosevelt and dictatorships in Europe and Asia, the Court flipped and upheld the constitutionality of independent agencies shielded from presidential control despite their entrustment with executing federal statutes, for example, the Federal Reserve Board, the Federal Trade Commission, the Federal Communications Commission, and the Securities and Exchange Commission. In Morrison v. Olson (1988), the Court similarly sustained the Office of Independent Counsel (OIC) empowered to enforce federal criminal statutes, which is a core presidential power.

Congress recognized the mischief of the OIC by letting its authority lapse. Independent agencies should likewise be restored to control by the president to fix responsibility for bad measures and to honor the genius of the Founding Fathers. Isn’t it preposterous that the independent Federal Reserve Board could destroy the economy and a president’s popularity by wildly inflationary or deflationary policies with no accountability?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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