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

[Malla Pollack]

I must respectfully disagree with David Bernstein.  A "unitary
executive" involves less ability of persons within the executive branch
to serve as checks on the President's personal agenda.  Less checks mean
more power for the President himself, if for no other reason than a
greater ability to keep controversial choices secret.  While this might
be good if the President were a well chosen philosopher king, P.K's tend
not to be elected President in the USA.  

 

Malla Pollack

Professor, American Justice School of Law

mpollack at ajsl.us

270-744-3300 x 28

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
DavidEBernstein at aol.com
Sent: Saturday, October 07, 2006 10:05 AM
To: stevenjamar at gmail.com; Conlawprof at lists.ucla.edu
Subject: Re: federalism, the Federalist Society,and the executive and
national security

 

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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