John Yoo on the Unitary Executive

A recent speech by John Yoo to the Federalist Society provides some interesting insight to the current Administration's perspective on presidential power. A long-time proponent of what is known as the theory of the Unitary Executive, John Yoo uses the cover of a valid theory of constitutional (Article II) interpretation to push his extremist notions of presidential power.

I say the Unitary Executive is a valid option of constitutional interpretation because it is directly gleaned from Article II of the Constitution. To quote directly from the Wikipedia article:

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive theory use this language along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."

While this might be a valid interpretation of the words of our Constitution, our tradition has evolved away from a strict implementation of the unitary executive theory. While the president retains vast power to direct the executive ship, there are areas of day-to-day governmental operation that we seek to rest above or beyond the realm of politics. For example, the Federal Reserve is not directly answerable to the President, although it is technically part of the Executive Branch. Same goes for independent agencies such as NASA or the Federal Election Commission. These agencies work in areas that Americans generally agree should remain free of the influence of presidential priorities and partisan wrangling. For the FDA, science is science no matter who is president.

Nevertheless, John Yoo thinks that everyone in the executive branch should be in lock-step with the President: "Every subordinate should agree with [the president's] views so there is a unified approach to the law..." He goes on to elaborate why the unitary executive is necessary:

“The president reacts to unforeseen events and emergencies that Congress can’t anticipate … like Sept. 11, that are outside the anticipation of written laws,” said Yoo. “The framers wanted a presidency that’s unified and can operate with speed and secrecy so they left [the office] with ambiguous limits on its power. It was not carefully defined, deliberately.”

Regardless of the defensibility of the Unitary Executive, Yoo's claims springboard into waters way beyond the realm of the theory. While Alexander Hamilton writes repeatedly in The Federalist Papers that the country needs an "energetic executive" or an "energetic government," I am not aware of any reference from the Founders that the Government should operate in secret. And they most certainly were not ambiguous on the limits of the presidency's powers. Checks and balances along with separation of powers are central to the framework that the Constitution erects. The president's realm is to execute the law, not make it or reinterpret it or ignore it. And the president (nor the Administration) certainly may not break the law, a la FISA-style.

When did Welfare become Welfair?

In considering Kelly's post on Bread and Circuses and the current consternation over health care reform tied to the gathering campaign for the 2008 presidential election, I have to wonder when our society's concept of welfare - the humane and laudable goal of providing a safety net for people when they fall, to give them a chance to get back on their feet - became welfair - the pervasive belief that everyone is entitled to exactly the same level of service, no matter one's net worth or available wealth.

First, I must say that I am sympathetic and mindful of the need to provide some level of basic service for those without medical insurance. Regardless of one's current state of employment, income or health, everyone in society is entitled to some basic level of care to keep them healthy and sane. I would even go so far as to concede that the government might be able to find an effective means of backing such a "stop gap" insurance plan, though such a program should be approached with caution. The last thing we would want is the Government to mess with what currently works in the American health care system. We just need to find ways to plug the holes.

Beyond my belief that the government might have a role to play in providing a base level of health care coverage, there is nothing in the Constitution that would say the federal government can or should play this role. As Kelly asks, "The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens." Without the citizens of the more wealthy states subsidizing the citizens of poorer states through the bureaucratic nightmare of the federal government, a federal scheme is not possible. Even if this limitation could be overcome, it would not be desirable, given the proven inefficiencies of the federal bureaucracy. Better to keep any such governmental role at the State level.

Nevertheless, many on the Left look to Canada and Great Britain's socialized health care systems as some sort of panacea that Congress should adopt for the entire nation. They think it somehow "unfair" that people have different access to health care given different levels of wealth. We generally don't like the fact that the rich can afford more access than the average middle-class citizen restricted by the insurance companies or the uninsured shut out cut off from all but emergency care.

Somewhere along the way, though, our society's definition of "equality" morphed into something different that what the Founders understood. For the Framers, equality equated to what was right. Witness the words of the Declaration of Independence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Thomas Jefferson talks about equality being the ability of men (and women, by extension of our egalitarian ideals throughout the nineteenth century) to live their lives unoppressed by Government and free to pursue their passions and dreams as they see fit. But present-day concepts of equality has more to do with what people perceive to be fair.

We don't think it's fair that people with more money have access to elective surgeries that we might like for ourselves, but who, I ask, would they propose should define what is "fair" health coverage? If it is impossible for everyone to receive reconstructive breast surgery after a mastectomy, should no one be allowed to receive it? If Zoloft is too expensive to be given to everyone, should it simply be banned so that no one can be freed from their depression?

The things that work in America's health care system are driven by the free market. As we debate ways to bring some basic level of health care to everyone (a worthy goal for which we should work to make happen), let's not adopt the concept that equality can only mean sameness of level for everyone.

Bread and Circuses

Last I checked, good roads were not in the Constitution under the “Things government is supposed to do” category.

Funny thing too – education and health care are missing as well.

It might be something that only the government can provide on such a large scale. It does require a certain level of prosperity which we tend to forget. In times of war or major economic depression, from where will the money come?

Have we considered who gets to choose what procedures will be covered? Why should people in other states have a say on whether Texas covers RU-486? The only way to get around this issue is create a state-based system. The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens. It also follows that California has many more people to cover which would draw down their average dollar spent per person much closer to North Dakota’s. If you want to find out about Canada’s system, ask about cosmetic procedures (costly but elective) or cancer treatments (life-prolonging but extremely costly).

If North Dakota wants to share in California’s tax revenue, they have to accept the strings that California places on the money. Most of the time people are too focused on the $-signs and ignore the strings until too late. It also trains the citizenry that when they get in trouble, they can always run to Uncle Moneybags. After you’re resigned to the first string, the following strings-for-money trade-off become less onerous until you find yourself as a marionette, dancing for your lunch money and resenting the puppeteer all the while trying to get another money ‘fix’.