One of the infamous legal theories that has underpinned the abuse of the Constitution by the Bush Administration has been the Unitary Executive:

What does a "unitary executive mean . . . for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

But in order to distinguish the SCOTUS' Rasul decision in the recent Gitmo habeas case, the Bush Administration has disavowed implicitly the unitary executive theory. Yes, heads will spin.

In a divided 2-1 ruling, Boumediene v. Bush, a panel of the DC Circuit Court of Appeals has ruled that the "enemy alien" detainees at Guantanamo do not have a Constitutional right to a writ of habeas corpus. The decision is an exercise in disengenuity. It accepts as undisputed fact, with the merest discussion - that the detainees do not have a Constitutional habeas right because (1) Guantanamo is outside of the control of the US government in direct contradiction to the Supreme Court holding in Rasul and that (2) the detainees are "enemy aliens" for habeas purposes.

The DC Circuit concedes at fn. 8 that in fact the detainees are NOT enemy aliens, but that it does not matter anyway - thus standing Eisentrager on its head. And this is not insignificant - for the reasoning could be read to allow the Executive to detain American citizens outside US territory as well.

Consider this language:

[U]nder the common law [habeas corpus], the dispositive fact was not a petiotioner's alien enemy status, but his lack of presence within any sovereign territory.

In essence, the DC Circuit adopts the flawed thinking of Judge Robertson's Hamdan decision. The key passage begins at p. 17 of the DC Circuit opinion. Just like Robertson, the DC Circuit misreads Eisentrager and Rasul. The DC Circuit has now perversely opined that, with regard to the Great Writ, the Congressional power extends to jurisdictions that the Constitution did not. Ironic in light of the view of the Unitary Executive and the all powerful wartime Commander in Chief.

Mark Schmitt points out a serious concern about Hillary Clinton's views on executive power:

I was . . . alarmed by the following passages:

Mrs. Clinton’s belief in executive power and authority is another factor weighing against an apology, advisers said. As a candidate, Mrs. Clinton likes to think and formulate ideas as if she were president - her ’responsibility gene,’ she has called it. In that vein, she believes that a president usually deserves the benefit of the doubt from Congress on matters of executive authority....

. . . [W]e have just gone through a period of the most staggering expansion of executive power in history, and I suspect that we don’t know the half of it. The setup that was the Iraq resolution, the manipulation of the executive branch itself in order to deceive Congress was one example of it. . . . The last thing we need at this moment is yet another president who "believes in executive authority and Congressional deference." We need a president who respects separation of powers and democracy. After all, the next president will not be our last.

I agree with Mark's concern but it requires a Congress willing to stymie Executive Power to check abuse of power by a President. A President Hillary Clinton asserting strong Executive Power is a concern of course. But Thomas Jefferson disclaimed any number of federal powers that he then used when President.

More....

In a post, Matt Yglesias sparked a discussion of what exactly is the President's war power, what view did the Clinton Administration espouse and what does the War Powers Act say to the matter. In a comment, Marty Lederman expressed his view:

The big question here is not the War Powers Resolution, but the Constitution. What sorts of hostilities can the President initiate unilaterally under the Constitution? Matt is right that the Clinton Administration took a very broad view -- see Haiti, Bosnia Bosnia and Kosovo, for starters; we basically concluded that congressional pre-approval is only required for a complete, or total, war (see footnote 5 of the Bosnia opinion, hinting that the Korean War might have been unlawful because Congress had not authorized it in advance).

. . . as a practical matter, the issue is determined -- the President believes he has the power, and he won't hesitate to exercise it.

Unless. Unless Congress actually passes a statute, probably over Bush's signature, that would prohibit military action against Iran. . . .

There is much to disagree with in what Lederman writes. Mostly because he is comparing apples (Kosovo, Bosnia, Haiti) to oranges (Iran.)

At dailykos, mcjoan calls attention to this Blue Jersey report of a heartening change of heart:

After all the uproar over Senator Menendez's vote a few months ago for the unconstitutional Military Commissions Act which eliminated habeas corpus and legalized torture, it appears he's had a change of heart. That vote was taken under immense pressure during the campaign, and he's now doing the responsible thing and cleaning up the mess he helped make.

Menendez is reportedly joining Chris Dodd to co-sponsor a bill that would restore the habeas review that the Military Commissions Act prohibits. Raw Story has a video of Dodd's reasoned argument in favor of the bill.

I have been extremely critical of the push from many to have the Congress concentrate on stopping the commencement of war in Iran instead of ending the war in Iraq. My basic premise is that Bush's only possible legal rationale for initiating a military conflict with Iran is by arguing that Iran is interfering in the Iraq conflict. As I have stated, the 2002 Iraq AUMF is a blank check to the President and could conceivably be argued as the basis for striking Iran based on Iran's alleged involvement in Iraq. Not surprisingly, the Bush Administration is indeed arguing that Iran is meddling in the Iraq conflict:

The most lethal weapon directed against American troops in Iraq is an explosive-packed cylinder that United States intelligence asserts is being supplied by Iran. . . . Any assertion of an Iranian contribution to attacks on Americans in Iraq is both politically and diplomatically volatile. The officials said they were willing to discuss the issue to respond to what they described as an increasingly worrisome threat to American forces in Iraq, and were not trying to lay the basis for an American attack on Iran.

Riiiiiiight. So, is it even possible to say now that a war with Iran does NOT run through Iraq? One normally would say no BUT the drive for Congressional action on Iran may actually blunder into actually declaring the President CAN attack Iran without Congressional approval, depsite the fact that this is just plain wrong.

In the Judiciary Committee hearing on "Exercising Congress' Constitutional Power To End A War," chaired by Senator Russ Feingold, one of the more bizarre aspects of the testimony presented was that it actually had little discussion of Congress' power to end a war and focused instead on Congress' power to regulate the President's management of war. The other bizarre aspect of the testimony was the utter disregard for the existing Iraq Authorization To Use Military Force. It is necessary to remind just how awful this resolution was:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. (a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq . . .

Indeed, Democratic politicians and legal scholars have been utterly disingenuous in their discussions on the subject. I'll explain why on the flip.

See also Rep. Brad Miller discusses the issue with Secretary Albright.

On December 15, 1791, the U.S. adopted the Bill of Rights.

It's been slowly eroded since then, with the Patriot Act and other laws borne of fear in the mistaken belief that by restricting our rights we will become safer.

It's a great day to remind our elected officials in Congress of this anniversary -- and the history behind this critical addition to our Constitution.

One of the many examples of Right Wing distortion and disingenuousness comes when the concept of church-state separation is discussed. You have all heard this one -- "The separation of Church and State does not appear in the Constitution." The argument is that Thomas Jefferson invented the concept in an 1802 letter to a church group. This is, in a word, false. The First Amendment states expressly that the State can not be involved in religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

Did anyone miss that? Congress (which means all government through the incorporation doctrine of the Fourteenth Amendment) shall make NO LAW respecting establishment of religion. One more time, NO LAW. None. Zero. Zip. Nada. Any ambiguity there? Is the plain meaning of the text in doubt?

But where does it say church/state separation? Repeat and rinse. NO LAW. The fact that the State can make no law on establishment of religion separates the State from religion absolutely and entirely. That is what the text plainly and unmistakably says. Now we all know the Supreme Court, in acts of activism that please the Right, decided that NO LAW did not really mean NO LAW. And we live with the Lemon test, more or less, today. But make no mistake, the First Amendment expressly separates that State from religion by prohibiting all laws regarding establishment of religion.

More.

Anti-abortion activists have worked for years to reshape the judiciary with judges who believe Roe v. Wade was wrongly decided. If they eventually convince a Supreme Court majority that the Constitution does not protect a woman's right to choose abortion, they'll focus next on state legislatures. This election gives reason to hope that most voters would reject their efforts to criminalize abortions.

The Supreme Court heard argument today in a case that asks whether a federal law prohibiting some medical procedures (the breadth of the law is a disputed issue in the case) violates the Constitution. Because it contains no exception when those procedures are needed to preserve the woman's health, the lower courts concluded that the law contravenes a woman's right to make important choices about her own life. That conclusion seems compelled by Supreme Court precedent, so the question is whether the addition of Justice Alito and Chief Justice Roberts (and the subtraction of their predecessors) will change the direction of the Court's abortion decisions. Justice Alito asked no questions during the two hour session, perhaps because he knew the press and public would scrutinize his words for clues to his thinking.

If the right to choose is at risk in the Supreme Court, the country's voice was strong in its opposition to anti-abortion positions yesterday. South Dakota voters rejected a sweeping criminalization of abortion that contains no exception when an abortion is needed to save the mother's life, while Kansas voters booted anti-abortion crusader Phill Kline out of his position as the state's attorney general.

by TChris

The Constitution empowers the president to veto bills that the legislature enacts. It does not authorize the president to rewrite legislation. Untroubled by constitutional or legislative limits on executive power, President Bush again used a signing statement to explain his anticipated disobedience of the proposed law that Congress sent him.

The statement repeatedly asserts that Homeland Security Appropriations Act "purports to" do certain things. It "purport[s] to require congressional committee approval for the execution of a law." It "purports to direct the conduct of security and suitability investigations." It "vests in the President authority to appoint the Administrator, by and with the advice and consent of the Senate, but purports to limit the qualifications of the pool of persons from whom the President may select the appointee ..." The president claims that Congress can do none of these things.

Congress did not "purport" to do these things; Congress did them. If the president thought Congress passed an unconstitutional bill, he should have vetoed it. Can our strict constructionist president point to the constitutional language that permits him to ignore limits that Congress places on the executive powers that it enacts, or to deprive Congress of an oversight role in a law's implementation?

Charlie Savage at the Boston Globe explains how the president's power grab works to the detriment of FEMA, and of good government:

U.S. News & World Report notes that Charleton Heston may be replaced by Tom Selleck as head of the National Rifle Association.

Better Selleck than Ted Nugent, if you ask me. Of course, I have nothing against the NRA as I am a supporter of the belief that the Second Amendment protects an individual's right to bear arms and I am an opponent of gun control. The way I see it, the Second Amendment is one away from the Fourth and I'm not yielding anything when it comes to constitutional rights. Give them an inch, and they'll take a mile.