The Democrats’ quizzing of Judge Sam Alito, while often painful, was rarely hard to follow. For me, however, there was one exception: the Dems’ repeated harping on the “unitary executive,” which Alito advocated in a Reagan-era memo. As Alito patiently (and repeatedly) explained, the “unitary executive” concept has to do with the President’s authority over the executive branch, not the powers of the executive branch vis-a-vis the other branches of government.
This seemed obvious to me, and hardly radical; if you read Article II of the Constitution, you don’t see references to lots of administrative agencies, but, rather, the President is referred to as though he were the entire executive branch. So I couldn’t figure out why the Democrats were pursuing this angle.
Then, earlier today, I was reading Ted Kennedy’s interrogation of Judge Alito in connection with a magazine article I’m writing. Suddenly, the light bulb went on. Here is the exchange that did it:
KENNEDY: This is what you said: “Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned, at least the objectives for setting up a unitary executive.” That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making.
Our questions in this hearing is: What is your view of the unitary presidency?
You’ve responded in a number of our people, but we were interested in your view and your comments on the Morrison case, which you say is the controlling, but we want to know your view.
And it includes these words: “that could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making.”
Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?
Bingo. As we have repeatedly noted, one of the fundamental problems faced by any Republican administration is the entrenched hostility of the federal bureaucracy, which is overwhelmingly Democratic. During President Bush’s five years in office, this hostility has most critically been manifested by the CIA and the State Department, elements of both of which have worked actively to undermine American foreign policy. If the President were able actually to control the federal bureaucracy, as the Constitution contemplates, it would indeed effect a major change in the balance of power in Washington–not, in principle, between Congress and the executive, but between Democrats and their allies in the bureaucracy, and elected Republican Presidents.