David B. Rivkin, Jr., and Lee A. Casey: There Is Only One Executive
[Messrs. Casey and Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush.]
... Whoever the new attorney general is, he or she must be just as determined to defend, beginning with the confirmation hearings, the president's legitimate constitutional authority against congressional encroachment as was Alberto Gonzales.
The Constitution's framers wanted the federal government to have a strong executive power. Although few Americans were ever interested in a king, the country's experience under the Articles of Confederation suggested that Congress could not and should not exercise both legislative and executive authority. If the United States was not actually on the verge of dissolution -- and some at the time certainly thought this possible or even likely -- it had no effective government under the Confederation capable of defending the country's interests abroad or of addressing national concerns at home.
The new Constitution remedied this situation by providing for a single, independently elected president who would exercise the executive power. As Alexander Hamilton later explained in The Federalist Papers: "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: It is not less essential to the steady administration of the laws."
"A feeble executive," Hamilton warned, "implies a feeble execution of government." And, he noted, the very first "ingredient" constituting energy in the executive was this "unity" of authority in a single individual. Accordingly, the theory of a "unitary executive," which has become a particular bugbear to the Bush administration's critics, is nothing more than Hamilton's prescription put into practice by the Constitution.
Because the Constitution grants executive power to the president alone, Congress cannot "balkanize" the office by carving out areas of executive authority -- such as responsibility for federal prosecutions -- to be vested in officials who are not ultimately subject to the president's direction and control. Thus, high-level officials like U.S. attorneys serve at the president's pleasure, and can lawfully be fired for "political" reasons.
Similarly, the executive branch is a co-equal branch of government, and Congress cannot micromanage the president's exercise of his discretionary authority, particularly in the area of foreign and defense policy, or assign this role to the courts. Nor can Congress use its oversight power, which has been implied from the power to legislate rather than from any supervisory authority, as a means of controlling the president or the executive branch in general. As a result, any congressional demands for executive branch information must be grounded in a legitimate lawmaking need as part of legislative process, and balanced against the president's legitimate need for confidentiality in deliberations.
Notably, it was Congress, and not the president, who the framers feared would usurp power from the other branches of government or the states. As James Madison explained during the Convention itself: "[e]xperience had proved a tendency in our governments to throw all power into the Legislative vortex." And, as in so many things, they were prescient. From efforts to control the conduct of the war on terror and the campaign in Iraq, to demands for White House materials relating to the removal of several U.S. attorneys in 2006, the current Congress has directed its efforts at enfeebling the president, and the presidency....
Read entire article at WSJ
... Whoever the new attorney general is, he or she must be just as determined to defend, beginning with the confirmation hearings, the president's legitimate constitutional authority against congressional encroachment as was Alberto Gonzales.
The Constitution's framers wanted the federal government to have a strong executive power. Although few Americans were ever interested in a king, the country's experience under the Articles of Confederation suggested that Congress could not and should not exercise both legislative and executive authority. If the United States was not actually on the verge of dissolution -- and some at the time certainly thought this possible or even likely -- it had no effective government under the Confederation capable of defending the country's interests abroad or of addressing national concerns at home.
The new Constitution remedied this situation by providing for a single, independently elected president who would exercise the executive power. As Alexander Hamilton later explained in The Federalist Papers: "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: It is not less essential to the steady administration of the laws."
"A feeble executive," Hamilton warned, "implies a feeble execution of government." And, he noted, the very first "ingredient" constituting energy in the executive was this "unity" of authority in a single individual. Accordingly, the theory of a "unitary executive," which has become a particular bugbear to the Bush administration's critics, is nothing more than Hamilton's prescription put into practice by the Constitution.
Because the Constitution grants executive power to the president alone, Congress cannot "balkanize" the office by carving out areas of executive authority -- such as responsibility for federal prosecutions -- to be vested in officials who are not ultimately subject to the president's direction and control. Thus, high-level officials like U.S. attorneys serve at the president's pleasure, and can lawfully be fired for "political" reasons.
Similarly, the executive branch is a co-equal branch of government, and Congress cannot micromanage the president's exercise of his discretionary authority, particularly in the area of foreign and defense policy, or assign this role to the courts. Nor can Congress use its oversight power, which has been implied from the power to legislate rather than from any supervisory authority, as a means of controlling the president or the executive branch in general. As a result, any congressional demands for executive branch information must be grounded in a legitimate lawmaking need as part of legislative process, and balanced against the president's legitimate need for confidentiality in deliberations.
Notably, it was Congress, and not the president, who the framers feared would usurp power from the other branches of government or the states. As James Madison explained during the Convention itself: "[e]xperience had proved a tendency in our governments to throw all power into the Legislative vortex." And, as in so many things, they were prescient. From efforts to control the conduct of the war on terror and the campaign in Iraq, to demands for White House materials relating to the removal of several U.S. attorneys in 2006, the current Congress has directed its efforts at enfeebling the president, and the presidency....