Patrick Henry cautioned; “We are apt to shut our eyes against a painful truth …For my part, whatever anguish of the spirit it may cost, I am willing to know the whole truth; to know the worst; and to prepare for it.”


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The Supreme Court of the United States

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The Rule of Law 

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Congressional Authority Over the Federal Courts

OF EXECUTIVE POWER 2000s/2003/2003_3/prakash.pdf







Rule of law

From Wikipedia, the free encyclopedia.

The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

Listen to:

Frederick Bastiat's 
(1801 - 1850)
"The Law"
read by G Edward Griffin

The Law
by Frederick Bastiat

Rule of Law Publications
Including the International Criminal Court statute, and information on accountability for serious international crimes.

The Rule of Law Provides Foundation for Democracy
Judicial independence, equal protection and civil liberties are key components
By Alexandra Abboud
Washington File Staff Writer
The rule of law is a fundamental component of democratic society and is defined broadly as the principle that all members of society -- both citizens and rulers -- are bound by a set of clearly defined and universally accepted laws.  In a democracy, the rule of law is manifested in an independent judiciary, a free press and a system of checks and balances on leaders through free elections and separation of powers among the branches of government.
Although a written constitution is not a necessary component of democracy – for example, Great Britain does not have one -- in the United States, the rule of law is based primarily on the U.S. Constitution and on the assurance that U.S. laws – in conjunction with the Constitution -- are fair and are applied equally to all members of society.
In the United States, an independent judiciary, with the U.S. Supreme Court as the highest authority, has the ultimate responsibility for ensuring the government respects the rule of law and that all citizens are treated equally under the law.
U.S. Supreme Court Justice Anthony Kennedy, during the American Bar Association’s November 11, 2005, International Rule of Law symposium, outlined what he believes are the three major components of the rule of law:
• The government is bound by the law;
• All people are treated equally under the law; and
• The law recognizes that “in each person, there is a core of spirituality and dignity and humanity.”

John Adams, who with Thomas Jefferson drafted the Declaration of Independence, wrote in 1776 in his Thoughts on Government, “a republic is an empire of laws, and not of men."
In the U.S. legal system, the separation of powers as outlined in the U.S. Constitution ensures that the three branches of U.S. government, legislative (the Congress), judicial (the courts) and executive (the president and his Cabinet) are given certain powers that can be exercised only by one branch.  This separation, according to the founders, ensures that one person or group of people cannot concentrate all political power in their own hands, thereby creating a government that is run not by the whim of a few people, but rather by laws that are passed by Congress, a body that is elected by the people.
Practically speaking, for the U.S. government to act, several safeguards are in place to ensure that one branch cannot wield power without deference to the other branches. 
Some examples of these safeguards include the president’s ability to veto laws, and the Congress’ authority to override vetoes only with a super majority of votes.
Because the U.S. Congress is a body of elected officials, those officials are charged with carrying out the will of the people who elected them. According to Kennedy, this provision ensures “the government is bound by the fact that the law must originate in the consciousness of the people.”  
The Supreme Court, the highest court in the U.S., ensures that laws, both federal and state, do not violate the rights of the people, which are enshrined in the U.S. Constitution.  Even when Congress passes a law that is supported by the president, and enacted into law, a person who is affected by the law has a right to petition the courts if he or she believes the law violates rights guaranteed by the U.S. Constitution.  But for this system to work, it is necessary to ensure an independent judiciary.
According to Supreme Court Justice Sandra Day O’Connor, establishing an independent judiciary is not an easy task.  “Judicial independence just doesn't happen all by itself,” she said.  “It's very hard to create, and it's easier than most people imagine to destroy.”
An independent judiciary is one that is not subject to the whims of elected officials.  Judges and lawyers in the United States are bound by judicial codes of conduct that clearly outline what judges may and may not do.  
To ensure judicial independence in the United States, the judicial code of conduct, administered by the Judicial Conference (whose presiding officer is the chief justice of the United States and whose members include top judges from federal circuits and districts), outlines acceptable behavior. The Judicial Conference has committees that enforce the code and call judges to account if a complaint is made.  Financial disclosure forms are required to avoid corruption.  All of this, says O’Connor, “makes a tremendous difference in enabling the public of the nation to have a little bit of confidence in the impartiality and the fairness and integrity of the judges that are serving.”

But even though judges are required to adhere to a code of conduct and can be called to account for not following the code, they are in no way held to account for independent decisions that they make in cases. 
“Judges must be independent not so they can do as they choose, they're independent so they can do as they must,” said Kennedy.

The judicial code of conduct is available on a Web site of the federal judiciary.

The Real Salary Survey data shows that although the majority of those who found their first computer job in 1999 had one of these computer-related four-year college degrees, a significant number did not. Other credentials that entry-level computer professionals with one or less years of experience reported to the Real Salary Survey in 1999 were BS degrees in Math, Chemistry, and Business, and BA degrees in Philosophy, Anthropology, and even English. The Real Salary Survey also received salary reports from a handful of professionals working entry-level salaried computer jobs who reported having no degree at all. Several of these had completed Junior College certificate programs, a few had earned vendor certifications, and a surprising number reported having no recognized credential at all, although, of course, they did have strong self-taught computer skills. The graphs on Page 16 show how starting salaries correlated with credentials for a sample of 73 people with one or less years of experience who submitted salary reports to the Real Rate Survey between Apri1 1, 1999 and April 3, 2000.
As should come as no surprise, the entry-level jobs of people with weak credentials paid lower salaries than those of people with shiny new computer science degrees. But they still paid excellent salaries for people just starting their careers: most paid salaries in the $30,000s. But whatever their starting salaries, these people with weak credentials got their foot in their door. And, as we shall see when we look at how computer careers evolve, by the time they reach the five year point some of the people who have started out at lower salaries in less impressive jobs may outstrip those with far better credentials because they will have made better career decisions at each step of their career.
The reason for this is that in computer work, unlike in most other career paths, your actual value in the marketplace is determined far more by what you can do right now than by what you might have done in the past. Once you are experienced, the employers who are desperate for competent programming and system support help don�t care what college you attended or what your grades were. They care only that you can do their job, right now, and that you know the intimate details of the technologies to which they have committed their businesses future. 

In a dictatorship, one person has absolute power. Though there is typically a military and a bureaucracy in such a nation, and though there are typically laws to dictate everyday goings-on, the dictator has complete discretion. Typically, the dictator takes on, or assumes, an aura of a deity, or a cult of personality emerges. Examples include Mussolini's Italy, Hitler's Germany, and Kim's North Korea. Dictatorial systems are often based on military power, and the term "military dictatorship" is used.

Merriam-Webster Online Dictionary
Main Entry:
Pronunciation: 'dik-"tA-t&r, dik-'
Function: noun
Etymology: Latin, from dictare
1 a : a person granted absolute emergency power; especially : one appointed by the senate of ancient Rome b : one holding complete autocratic control c : one ruling absolutely and often oppressively

The Unitary Executive and State Administration of Federal Law

University of Michigan Law School

Congress frequently encourages states to become regulatory partners in federal programs, sometimes by threatening to preempt the existing regulations of non-participating states, and other times by rewarding participating states with substantial monetary subsidies. Less frequently, Congress orders rather than invites state officials to regulate in a desired manner, in essence coercively employing states as administrative arms of the federal government. The Supreme Court will revisit this term (in Printz v. U.S.) the question whether and to what extent such congressional "commandeering" of state officials violates principles of federalism. While the debate over commandeering has thus far focused exclusively on federalism principles, commandeering implicates separation of powers principles as well. Several scholars have recently rearticulated the "unitary executive theory" of Article II, arguing that Article II vests the power to execute federal law solely in the President of the United States. Unitarians do not maintain that the President must personally execute all laws; Congress may establish an administrative bureaucracy and identify particular officials to assist the President in carrying out legislatively prescribed tasks. But, unitarians argue, such officials must always remain subject to the President's direction. On the surface, this unitary executive theory appears to be implicated when Congress conscripts or even authorizes state officials to implement federal programs. Unless these state officials are subject to presidential supervision, Congress violates Article II by cutting the President out of the execution loop. Thus, principles of separation of powers, in addition to principles of federalism, govern the validity of state administration of federal law. In this symposium contribution, I assume the validity of the unitary executive theory and explore some of its separation of powers implications for the commandeering debate. I focus on two question. The first concerns remedy: If Article II means that unsupervised state administration of federal law is unconstitutional, what is the proper remedy for statutes, such as the Brady Act, that authorize or even mandate such state activity? Should the statutes be invalidated, or should the President be granted authority to supervise state officers implementing such statutes? The second question concerns scope: What counts as "state administration of federal law" for purposes of the unitary executive theory? Does the unitary executive theory call into question only state administration of federally-defined law (such as the Brady Act), or a wider variety of cooperative federal-state programs such as welfare and Medicare as well?

Scholar says Bush has used obscure doctrine to extend power 95 times
Jennifer Van Bergen

The Bush administration has been using an extreme version of an obscure doctrine called the Unitary Executive Theory to justify executive actions that far exceed past presidents' power, RAW STORY has learned.

The doctrine assumes, in its extreme form, nearly absolute deference to the Executive branch from Congress and the Judiciary.

According to Dr. Christopher Kelley, a professor in the Department of Political Sciences at Miami University, as of April 2005, President Bush had used the doctrine 95 times when signing legislation into law, issuing an executive order, or responding to a congressional resolution.

The President announced in these signings that he would construe provisions in a manner consistent with his “constitutional authority to supervise the unitary executive branch.” While the President clearly has the authority to supervise the executive branch, it is unclear how far he might construe this authority under the unitary executive theory.

In fact, according to professors Steven J. Calabresi and Christopher S. Yoo, “a veritable all-star list of constitutional scholars” has rejected judicial supremacy, considering it inconsistent with the idea of checks and balances among the three branches of the federal government.

The President announced in these signings that he would construe provisions in a manner consistent with his "constitutional authority to supervise the unitary executive branch." While the President clearly has the authority to supervise the executive branch, it is unclear how far he might construe this authority under the unitary executive theory.

The Administration’s actions under this doctrine have become so prevalent that even conservatives on the Supreme Court who are sympathetic to the unitary executive theory have felt compelled to reject them. Last year, for example, the Court ruled that the President does not have absolute authority to detain enemy combatants without due process.

Unitarian vs. Non-Unitarian theoreticians

The unitary executive doctrine, in its mildest form, claims only that the President has the power to appoint, control, and remove executive officers, as well as the duty to interpret the law as it applies to his office.

The doctrine is being used by the Bush Administration, however, to claim the authority to decide what is and what is not the law in areas that some legal experts view as suspect. Michael A. Froomkin, professor at University of Miami Law School, told RAW STORY that some of Bush’s applications of the doctrine are “highly dubious.”

Under the Constitution, the president’s role is to “take care that the laws be faithfully executed.” Congress has the power to make the laws and the judiciary interprets the law.

For over 200 years, the United States Supreme Court has been viewed as the final arbiter of what is and what is not the law. “It is emphatically the province and duty of the judicial department to say what the law is,” declared Chief Justice John Marshall in 1803. “This is the very essence of judicial duty.”

But unitary executive theoreticians claim that judicial supremacy over interpretation of the laws is not and never has been exclusive. Professors Calabresi and Yoo have noted that “the suggestion that the Supreme Court may not have the last word on matters of constitutional interpretation seems at first to be quite jarring to modern lawyers” but Marshall’s famous opinion “never claimed that interpretation of the law was the exclusive province of the courts.”

Froomkin, who has debated this issue on the law review circuit, is a non-Unitarian who acknowledged to RAW STORY that the president has not only the power -- but the duty -- to interpret the Constitution in certain instances, as when he vetoes a bill.

“The President has a duty not to undermine his own office,” he says.

According to Froomkin, a problem arises when the president views himself as completely above the law or is so secretive that no checks and balances can work. The greatest danger is when Congress doesn’t adequately assert itself, he asserts.

The Miami professor noted that Congress did not react to the legality of the Guantanamo detentions. Nor did they respond when the CIA used an unmanned plane fitted with a five-foot-long Hellfire missile to kill a senior al Qaeda leader as he was riding in a car in the Yemeni desert, also killing a naturalized U.S. citizen.

Congress has never questioned the order to assassinate these individuals, even though the CIA has been banned from conducting or participating in assassinations since 1976.

The major difference between Unitarians and non-Unitarians, according to Froomkin, is that Unitarians believe the President can do what he likes and non-Unitarians believe there are boundaries and limits to executive power.

The Geneva Convention

Froomkin also sees the selective nonapplication of the Geneva Conventions to certain designated enemy combatants and the military tribunals as legally dubious.

The Administration’s claim that it has the authority to decide what is or is not the law is most manifest in its decision not to apply the Geneva Conventions to certain persons. A 2003 memo on torture written by Department of Defense lawyers stated that “criminal statutes are not read as infringing on the president’s ultimate authority” as commander-in-chief, and prohibitions on torture “must be construed as inapplicable to interrogations.”

“Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,” said the memo.

White House Counsel Alberto Gonzales wrote in 2002 that the Geneva Conventions were “obsolete” and “quaint” and argued that Bush had the constitutional authority to determine that Geneva did not apply to al Qaeda or the Taliban.

Several mainstream legal scholars have declared that the President’s claim of unlimited executive power turns the Constitution on its head. University of Texas law professor Douglas Laycock told the L.A. Times that “It is just wrong to say the president can do whatever he wants, even if it is against the law.”

Charles Gittings, founder of the Project to Enforce the Geneva Conventions, asserts that the President’s decision not to apply Geneva, or to apply it selectively, is a grave breach of the Convention and thus a violation of the War Crimes Act of 1996.

“The President has no Constitutional authority to commit crimes,” he said.

Contact this writer at

What is the "Unitary Executive"?

January 11, 2006

Judge Samuel Alito has stated in the course of the hearings that he subscribes to the concept of the unitary executive. While in the Reagan administration, he helped expand the practice of presidential statements upon signing of legislation. Presidential signing statements may express how a president interprets the law he is signing.

The Washington Post has reported that Alito wrote in 1986: "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress. ... [B]y forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

A leading expert on bill signing statements and the unitary executive, Kelley is author of a dissertation on the unitary executive and the presidential signing statement as well as the paper "Rethinking Presidential Power -- The Unitary Executive and the George W. Bush Presidency."

Kelley said today: "While other administrations have made use of bill signing statements since Reagan, the current administration is doing something unlike what others have done, citing the unitary executive an unprecedented number of times in these signing statements. Judge Alito seemed to indicate that the concept of the unitary executive simply applied to the executive controlling inferior offices, but he must know better. For instance, the 'Oath' clause of the Constitution demands that the president protect both the office of the presidency as well as the United States Constitution. To ensure the president lives up to that solemn oath, he issues a bill signing statement that may be used to refuse to defend or enforce provisions of law the president independently determines to be unconstitutional, as well as to define vague, unclear, or undefined provisions of law.

"Judge Alito, who has written on aspects of the unitary executive, clearly should know that his understanding of the unitary executive is more than his description offered during his Senate testimony." Kelley is currently a visiting assistant professor in the department of political science at Miami University in Oxford, Ohio.

Van Bergen wrote recent articles on the unitary executive doctrine: "The Unitary Executive: Is the Doctrine Behind the Bush Presidency Consistent with a Democratic State?" and "Scholar says Bush has used obscure doctrine to extend power 95 times."

She said today: "Some aspects of the unitary executive are unobjectionable. The unitary executive doctrine is concerned with presidential powers in three ways: (1) presidential appointments and removals of officials in the executive branch, (2) presidential control over executive administration, and (3) the president's interpretations of laws in the execution of his duty as president. The first two of these are not subject to much controversy now.

"As to the third, while clearly the president must interpret the laws he is sworn to uphold in order to uphold them, and in some instances a president may find that a law conflicts with his duties (which may be properly resolved in a number of ways: by working with Congress, bringing the issue to a federal court, etc.), when the doctrine is used as a means to utterly ignore laws and treaties, this is extremely troubling and may create a constitutional crisis.

"When President Bush signed the McCain amendment, which prohibited the use of torture when interrogating detainees, he also issued a presidential signing statement. By this statement, in which he relies on the unitary executive doctrine, Bush appears to grant himself the authority to bypass the very law he had just signed.

"This news came fast on the heels of Bush's shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of the Foreign Intelligence Surveillance Act, which was enacted in the aftermath of Nixon's unlawful wiretappings specifically to curb unchecked executive branch surveillance.

"It seems clear that Bush believes he can ignore laws, even those that he signs or that specifically were meant to prohibit the executive from acting. Does this also mean he can ignore the courts when he wishes? We need to decide whether a president who is determined to ignore or evade the law has not acted in a manner contrary to his trust as president and subversive of constitutional government.

"Further, Congress should look very carefully at Alito's views on the unitary executive doctrine. If Alito believes that the doctrine allows the president to ignore laws, disregard clear congressional intent, or override federal court determinations, Alito should not be confirmed."

Van Bergen is author of the book The Twilight Of Democracy: The Bush Plan For America.
More Information

An Unchecked President, Tainted Laws and the lslamic Revolution

So much has happened over the last couple of days. The President has become a King under the "Unitary Executive Theory." Under a theory Sam Alito supports, the President can decide to ignore whatever laws he wants -- doesn't that make him a dictator?

That might sound like hyperbole, but it's a serious question.

If there are no checks to his power under this theory which he has used repeatedly in his signing statements (a statement he issues that says he won't necessarily follow the law he just signed), then what does prevent him from being above the law? What laws will he follow? How far does his Unitary Executive power stretch? Is there anything he feels he doesn't have the power to do under this theory?

And how bummed are the Republicans going to feel when there's a Democratic President with the same level of unchecked power?

Then there is the desperate attempt of the Republicans and their mainstream media henchmen to try to paint the Jack Abramoff scandal as nonpartisan. The guy has raised $100,000 for President Bush (which, of course, the President won't return). His right hand man, Michael Scanlon was the spokesman for Tom DeLay. 21 out of the 24 politicians who have returned money to Abramoff are Republicans. On and on and on.

By the way, is anyone going to look into all the "tainted laws" that were passed as a result of Jack Abramoff's dirty money?

And finally, as I was reading about the 183 people killed in Iraq over the last two days something really jumped out at me. This has always amused me but no one seems to comment on it, as if it is perfectly normal. The party that won the most votes in Iraq's recent election was The Supreme Council for Islamic Revolution in Iraq.

We invaded a country that did not attack us and didn't even have any weapons so that we could give them democracy so they could elect The Supreme Council for the Islamic Revolution in Iraq. How proud those neo-cons must feel. The Islamic Revolution in Iraq has begun. Mission Accomplished!


Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency.

The Unitary Executive in the Modern Era, 1945-2001



"The Law!"

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