A Question of Presidential Power


WASHINGTON, D.C.–As the Senate moves towards a vote on Supreme Court nominee Samuel Alito, there will be additional debate over his views on abortion and reproductive rights in general, the overreaching powers of the federal government, and, perhaps, most significantly, his concept of unitary presidential power. Put into practice, that theory will bolster President Bush’s current program of eavesdropping on million of Americans. Bush, in Manhattan, Kansas, yesterday, insisted the spying was limited and targeted to suspected terrorists.

The domestic spying program is not, says former National Security Agency director Michael Hayden, now in charge of intelligence at Homeland Security, a “drift net” over America.

But Russ Tice, the NSA national security analyst who has been identified as a source for the New York Times expose of the spy program, says the NSA has targeted millions of Americans. Tice’s whistleblowing has now put him under a criminal investigation by the FBI. He wants to testify before Congress, but it is uncertain whether that will ever happen, as the government has thrown one bureaucratic obstacle after another in his path.

In the Senators’ questioning of Alito, a key point was how far he was willing to go support the rights of a strong administrative branch. As with so much else Alito said, the nominee’s responses proved frustratingly vague:

“One of the most solemn responsibilities of the president–and it’s set out expressly in the Constitution–is that the president is to take care that the laws are faithfully executed, and that means the Constitution,” Alito said. “It means statutes. It means treaties. It means all of the laws of the United States.”

The unitary theory of presidential power, as Robert Parry, the former AP reporter who exposed much of the inner workings of Iran Contra affair during the 1980s, says on his Consortium News site, “would sound the death knell for independent regulatory agencies as they have existed since the Great Depression, when they were structured with shared control between the Congress and the President. Putting the agencies under the President’s thumb would tip the balance of Washington power to the White House and invite abuses by letting the Executive turn on and off enforcement investigations.”

For example: if Bush had been operating under the court-sanctioned theory of unitary power, he could have stopped the Securities and Exchange Commission investigation into Enron in 2001 and saved his pal and campaign contributor, Enron chairman Ken Lay.

In practice, the theory of unitary executive would allow Bush to step in and run the Federal Communications Commission, granting or revoking broadcast licenses at will, as Parry notes, “without the constraints that frustrated Richard Nixon’s attempts to punish the Washington Post company for its Watergate reporting. Bush also would be free to order communication policies bent in ways that would help his media allies and undermine his critics.”

Under the watchful eye of Bush, the Federal Elections Commission would be told to lay off lobbyists and Bush cronies like Jack Abramoff.

These agencies have plenty of problems and have been attacked year after year as weak and ineffective handmaidens of industry, and so on. But they are a lot better than nothing. Without them, the country would plummet backward into the pre-New Deal era, and before, when Morgans, Rockefellers, Harrimans, and Mellons set the rules and objectives for the nation’s economy.