Alito and the “unitary executive”: The Latin Americanization of the US Constitution?

From today’s LA Times:

This week, as Alito goes before the Senate Judiciary Committee, it will be seen whether Bush’s boldness in asserting powers of the presidency has complicated the confirmation prospects for his nominee to the Supreme Court. Along with abortion rights, executive power has moved to the forefront in the battle over Alito’s confirmation.

As well it should. I noted a few days ago that Alito has been on record since 1986 as favoring signing statements as a means by which the President could seek to have the courts accept the President’s understanding of a law in future litigation over that law. Courts have tended not to take such statements into account, but if a fan of signing statements were on the Supreme Court, he might seek to raise their prominence.

So, if 1986 seems too long ago, there is this statement from November, 2000, before the Federalist Society, reflecting on his time in the Reagan administration’s Justice Department:

We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.

The Times then notes that,

In a sense, the “unitary executive” theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.

In combination, the support for signing statements and opposition to independent regulatory agencies constitute a theory of executive power in which the legislature only makes broad pronouncments of policy, which a single man (or, theoretically, woman) then can reshape. In the absence of independent agencies and with sympathetic justices on the highest court, the President could issue decrees to bureaucrats to implement a law in a way consistent with the Presidential signing statement, and expect the courts to back up the executive’s re-interpretation of the legislative mandate.

In other words, in Alito we have a potential Supreme Court justice who believes that the United States would be better if we had a more Latin American style presidency: One that has much more than a veto, but instead has the constitutional right to implement laws as it sees fit.

Among my research specialties are comparative presidential authority and executive-legislative relations. I have long believed, as a product of my research, that Latin American countries need their congresses to assert more authority over the details of policy-making and create more independent agencies to check executive unilateralism in implementation.

In other words, for all my zeal for reform of certain features of US political institutions–see “the core” list on the left sidebar and “The Mission” above–in terms of executive powers I have long seen the US as the model that other “pure”* presidential systems should emulate.

Apparently, Alito believes the best models of presidentialism are to be found farther south. That is disturbing. The United States Senate–hardly my favorite US institution–needs to force the President to nominate option no. 3 for the critical O’Connor seat on the United States Supreme Court.

*I.e., “pure” in the sense of being unitary at the top: President as head of government as well as head of state, as opposed to “semi-” presidential hybrids, in which the head of government is subject to the confidence of the majority of the lower/sole house of the legislature. The latter is a still-better model, in my view.

8 thoughts on “Alito and the “unitary executive”: The Latin Americanization of the US Constitution?

  1. Terrific piece, Matt. I linked to it from my blog.

    Remember the old discussions about what mattered more, the formal institutions of government or the political culture that sustained them? I hope we don’t have to test that supposition here and now.

  2. What matters more: formal institutions or political culture? Indeed, Kingdaddy, we may be testing that. If the “we’re at war” political culture now prevailing wins, we lose.

    Thanks for the comment. And the link.

  3. had i not just finished reading a variety of materials on the political and economic history of colombia, and simon bolivar’s legacy south of here, i would leave this article without comment, thinking positive thoughts of its contents.

    what struck me however was that the most distinguishing feature of that political culture which led to almost permanent civil war was a lack of commitment for egalitarian ideas. if there is something that distinguishes this drooling brand of our conservatism, it is this similar demonstrable contempt for ordinary people and the branches of government through which ordinary people can seek recourse.

    i used to wonder why so many people seemed uninterested in or dismissive of “equality before the law.” looking south, the reasons become clearer – some people just find the idea of equality deeply insulting, no matter how fairly or carefully it is implemented.

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  7. “Belittled domestically, President Bush is flexing his last working muscle: His control over the nation’s military. And in so doing, he is adding one last addendum to the ever-changing Bush Doctrine, establishing yet another de facto US policy on his way out the door, and leaving his successor with yet another controversial precedent to wrestle with.

    By approving a US military raid across the Iraqi border into Syria, Bush has changed the rules once again. On Sunday about two dozen special forces soldiers entered the country by helicopter and killed a suspected Iraqi insurgent leader, without the permission or cooperation of the Syrian government. Call it an October surprise – if not, at least so far, the October surprise…”

    Dan Froomkin, “One Last Bush Doctrine,” Washington Post (28 October 2008)”

  8. Pingback: Why Republicans need not fear a unilateral President Clinton | Fruits and Votes

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