federalism, the Federalist Society, and the executive and national security

[DavidEBernstein at aol.com]

In this discussion, I think we should separate the issues of a "unitary 
executive" from the issue of "how much power does the president/executive have to 
act unilaterally in foreign/military affairs.  They are, in my view, completely 
distinct constitutional issues.  I think Federalist types have been very 
consistent in advocating a unitary executive on separation of powers grounds (I 
don't recall anyone who argued that Morrison v. Olson was wrongly decided 
changing his mind when it came to Ken Starr, even if they were fans of the 
investigation itself), but support on the right for executive "energy" in with regard 
to military affairs has indeed waxed and waned depending on who is in office.  
But note the same is true on the left: the same folks, especially in the 
Senate, who demanded that Bush I get Congressional authorization for the Gulf War 
were against requiring Clinton to get it for Haiti, Bosnia, etc., and vice 
versa. 


David E. Bernstein
Professor
George Mason University School of Law
Visiting Professor, Fall 2006
Brooklyn Law School
http://mason.gmu.edu/~dbernste
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