The Unitary, or Unilateral Executive? Presidential Power in the Bush Administration
DOI:
https://doi.org/10.15763/issn.2374-7781.2008.29.0.181-196Abstract
The Bush administration came to office in 2001 determined to return powers to the president lost largely as a result of Watergate. Key to returning those powers is the unitary executive theory of presidential power—a constitutional theory of power developed by conservatives in the Reagan administration meant to offer the president offensive and defensive opportunities when working with an external environment that is polarized and hostile towards the executive branch. While the theory has been a part of each administration from Reagan through Bush II, it is the Bush II administration that has received the majority of the attention for its aggressive defense of a number of controversial actions by relying on the theory. Among those actions has been the use (or abuse) of the presidential bill signing statement. It is my purpose to argue that the administration has not behaved as a Unitarian but as something else entirely, leaving the powers of the office perhaps in worse shape than they found it.References
A Failure to Govern: Bush's Attack on the Regulatory Process. 2007. OMB Watch. http://www.ombwatch.org/regs/PDFs/FailuretoGovern.pdf. March.
Aberbach, Joel D. 2003. The State of the Contemporary American Presidency: Or, Is Bush II Actually Ronald Reagan's Heir? In The George W. Bush Presidency: Appraisals and Prospects, eds. Colin Campbell and Bert A. Rockman. Washington DC: Congressional Quarterly.
Ashcroft, John. 2001. Memorandum for Heads of All Federal Departments and Agencies, Re: The Freedom of Information Act. http://www.usdoj.gov/04foia/011012.htm. October 12.
Barstow, David, and Robin Stein. 2005. Under Bush, a New Age of Prepackaged Television News. New York Times, Sunday, March 13, p. A1.
Bradbury, Steven G. 2005. Memorandum for the General Counsel's of the Executive Branch. Re: Whether Appropriations May Be Used for Informational Video News Releases. March 1.
Bush, George W. 2002. Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act. Weekly Compilation of Presidential Documents, November 2.
Bush, George W. 2004. Statement on Signing the Consolidated Appropriations Act, 2005. Weekly Compilation of Presidential Documents, December 8. Bush, George W. 2005a. President Meets with McCain & Warner, Discusses Position on Interrogation. http://www.whitehouse.gov/news/releases/2005/12/20051215-3.html. December 15.
Bush, George W. 2005b. Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006. Weekly Compilation of Presidential Documents, December 30.
Bush, George W. 2007. Statement on Signing the Consolidated Appropriations Act, 2008. Weekly Compilation of Presidential Documents, 43(52). December 26.
Bush, George W. 2008. Statement by the President on H.R. 2638, the 'Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009.'http://www.whitehouse.gov/news/releases/2008/09/20080930-7.html. September 30.
Cooper, Phillip. 2002. By Order of the President: The Use and Abuse of Executive Direct Action. Lawrence: University Press of Kansas.
Dellinger, Walter. 1993. The Legal Significance of Presidential Signing Statements. U.S. Op. Off. Legal Counsel, Vol. 17.
Dellinger, Walter. 1994. Presidential Authority to Decline to Execute Unconstitutional Statutes. U.S. Op. Off. Legal Counsel, Vol. 18.
Gellman, Barton. 2008. Angler: The Cheney Vice Presidency. New York. Penguin Press. Herz, Michael. 1993. Imposing Unified Executive Branch Statutory Interpretation. Cardozo Law Review 15:1-2.
Kagan, Elena. 2001. Presidential Administration. Harvard Law Review 114:8. June. http://dx.doi.org/10.2307/1342513
Kelley, Christopher S. 2005. Rethinking Presidential Power: The Unitary Executive Theory and the George W. Bush Administration. Conference paper. Midwest Political Science Association. April 7-10, 2005. On file with author.
Kelley, Christopher. 2007. Contextualizing the Signing Statement. Presidential Studies Quarterly 37:4. http://dx.doi.org/10.1111/j.1741-5705.2007.02622.x
Kepplinger, Gary L. 2007. Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts. Government Accountability Office. http://www.gao.gov/decisions/appro/308603.pdf, June 18.
Krent, Harold J. 2008. From a Unitary to a Unilateral Presidency. Boston University Law Review 88:2.
Lee, Sheila Jackson. 2007. Presidential Signing Statements Under the Bush Administration: A Threat to Checks and Balances and the Rule of Law? Prepared Remarks, House Judiciary Committee. 110th Congress, 1st Session. Serial No. 110-6. January 31.
Levin, Robert E. 2005. Defense Acquisitions: Information for Congress on Performance of Major Programs Can be More Complete, Timely, and Accessible. United States Government Accountability Office, Report to the Subcommittee on Defense, Committee on Appropriations, U.S. Senate. March.
Lund, Nelson. 1995. Guardians of the Presidency: The Office of Counsel to the President and the Office of Legal Counsel in Cornell W. Clayton, Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics. Lawrence: University Press of Kansas.
Madison, James. The Federalist No. 49. http://www.constitution.org/fed/federa49.htm.
Mayer, Jane. 2008. The Dark Side. New York: Doubleday.
Savage, Charlie. 2006. Bush could Bypass New Torture Ban. Boston Globe, http://www.boston.com/news/nation/articles/2006/01/04/bush_could_bypass_new_torture_ban/.January 4.
Savage, Charlie. 2007a. Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. New York: Little, Brown.
Savage, Charlie. 2007b. Reaganites Reconsider. The Nation 28:8.
Secrecy in Bush Administration. 2004. Minority Staff Special Investigation Division—United States House of Representatives Committee on Government Reform, September14.
Walker, David M. 2005. Memorandum for Heads of Departments, Agencies, and Others Concerned Re: Prepackaged News Stories. Washington DC: United States Government Accountability Office. February 17.
Zaneski, Cyril. 2002. Rule Breakers. Government Executive. http://www.govexec.com/features/0102/0102s4.htm. January 1.
Downloads
Published
Issue
Section
License
Authors who publish with American Review of Politics agree to the following terms:
The Author retains copyright in the Work, where the term “Work” shall include all digital objects that may result in subsequent electronic publication or distribution.
Upon acceptance of the Work, the author shall grant to the Publisher the right of first publication of the Work.
The Author shall grant to the Publisher and its agents the nonexclusive perpetual right and license to publish, archive, and make accessible the Work in whole or in part in all forms of media now or hereafter known under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 License or its equivalent, which, for the avoidance of doubt, allows others to copy, distribute, and transmit the Work under the following conditions:
Attribution: other users must attribute the Work in the manner specified by the author as indicated on the journal Web site;
Non-Commercial: the materials may not be used for commercial purposes;
Share Alike: If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
with the understanding that the above condition can be waived with permission from the Author and that where the Work or any of its elements is in the public domain under applicable law, that status is in no way affected by the license.
The Author is able to enter into separate, additional contractual arrangements for the nonexclusive distribution of the journal's published version of the Work (e.g., post it to an institutional repository or publish it in a book), as long as there is provided in the document an acknowledgement of its initial publication in this journal.
Authors are permitted and encouraged to post online a pre-publication manuscript (but not the Publisher’s final formatted PDF version of the Work) in institutional repositories or on their Websites prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (see The Effect of Open Access). Any such posting made before acceptance and publication of the Work shall be updated upon publication to include a reference to the Publisher-assigned DOI (Digital Object Identifier) and a link to the online abstract for the final published Work in the Journal.
Upon Publisher’s request, the Author agrees to furnish promptly to Publisher, at the Author’s own expense, written evidence of the permissions, licenses, and consents for use of third-party material included within the Work, except as determined by Publisher to be covered by the principles of Fair Use.
The Author represents and warrants that:
the Work is the Author’s original work;
the Author has not transferred, and will not transfer, exclusive rights in the Work to any third party;
the Work is not pending review or under consideration by another publisher;
the Work has not previously been published;
the Work contains no misrepresentation or infringement of the Work or property of other authors or third parties; and
the Work contains no libel, invasion of privacy, or other unlawful matter.
The Author agrees to indemnify and hold Publisher harmless from Author’s breach of the representations and warranties contained in Paragraph 6 above, as well as any claim or proceeding relating to Publisher’s use and publication of any content contained in the Work, including third-party content.