Talk:Unitary executive theory

Eh?

The phrase has also been used to describe the belief of members of the George W. Bush administration, such as David Addington, that the presidency has expansive powers and deserves nearly absolute deference from the Congress and judiciary. Described _by whom_? Beware the passive voice. Until there are sources for those describing I'm removing this. Better yet, use David Addington's own words. 24.160.136.10 15:00, 8 January 2006 (UTC)

Unitary Executive merged in

How can this be combined with the other article "Unitary Executive"? --Anon

I've merged the material from the other article into this one; I think that the title of this article is probably more appropriate. I think there are a couple of things in this article which really aren't entirely accurate, particularly the legal status (i.e., there must be some discussion of Morrison). Once Alito is confirmed, we should probably create a new main section for "views of current Justices" into which we can move the section about his views, and can then add material from Justice Scalia. Simon Dodd 20:49, 16 January 2006 (UTC)

This is an improvement. Thank you.--Nomen Nescio 22:01, 16 January 2006 (UTC)

Change by Delirium

He has changed

a law means what the President says it means, not what the Congress says it means.

into

any Congressional requirements are merely advisory.

Personally I fail to see the difference. A Bill is drafted by Congress. To state that its role is merely advisory is inherently the same as: the President can listen but doesn't have to follow Congress in how to interpret the law. Which is just another way of saying: the President decides how to interpret the law.--Nomen Nescio 03:29, 17 January 2006 (UTC)

No, the previous wording was much more expansive than the actual claim. The claim is that Congressional requirements on the disposition of executive powers are merely advisory; i.e. laws that require the president to use or not use one of his executive powers in a particular way may be ignored. Proponents of the unitary executive do not argue that the executive may ignore any law. For example, unitary-executive proponents claim that if Congress directs the president to use his war powers in a particular way (or not use them), the president may ignore that directive. However, if Congress changes tax rates, the president cannot ignore that. --Delirium 01:14, 18 January 2006 (UTC)

That's not how I read it. They claim the Constitution places the President above all, meaning he has the final say on things. Furthermore, when you read the critics, they too seem to think the general idea is that any law can be bypassed. Or, in the words of the critics:

• However, Bush's recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.[1]

• Yoo's interlocutor, Douglass Cassel, a professor at the Notre Dame law school, pointed out that the theory of the unitary executive posits the president above other branches of government: "Also no law by Congress. That is what you wrote in the August 2002 memo."[2]

• It happened not because it was legal, but because the president chose to believe the law was no constraint, ..............[3]

• That overarching principle is that the President is all powerful whenever he asserts a claim that what he authorizes or does is for the purpose of fighting a war.

(...........)

For we are faced with an Executive (....) that says it can do whatever it wants in the name of allegedly safeguarding America, and that whatever it does for this claimed purpose is therefore ipso facto legal regardless of whether it is in violation of statutory law, in violation of longstanding custom and precedent, or in violation of any reasonable conception of humanity.[4]

• But Bush apparently has judged that he, as president, and his close advisers can decide which laws they wish to obey .............[5]

• And neither Congress nor the Supreme Court has any authority to interfere with whatever the President feels he needs to do, ....[6]

Please discuss before reverting. Let's try and avoid an edit war.--Nomen Nescio 01:36, 18 January 2006 (UTC)

POV problems; War Powers

Wiki has to represent all sides of controversial issues, and cannot indicate its approval or disapproval. Second, there is a slippage between unitary executive theory, which is one thing, and the quite different argument to the effect that the president has Constitutional War Powers that can NOT be abridged by an act of Congress. Bush's signing statements combine the two points, but they are constitutionally quite distinct. I think they get merged and mixed in the article. Rjensen 06:29, 18 January 2006 (UTC)

I don't think this sentence, ``In other words, since under the "Unitary Executive" theory the Commander-in-chief has boundless authority, the President can choose to waive the torture ban. is at all fair. The president does not, under any executive theory, have power to direct the military to assasinate his political enemies, bomb Congress, or kill all the citizens of California. There are obvious limits set out in the constitution. Boundless implies that this would be legal. It should be changed to boundless power to control the actions of the executive branch within the scope of power set out in the constitution.Sjwheel 15:08, 18 January 2006 (UTC)

If you were to read the comments I supplied in the previous discussion, you would see there are legal experts who think that the current aggressive interpretation indeed suggests the President can, as Commander-in-Chief, overrule the law in his duty to protect the country. The only debate is whether it is limited to a wartime situation.--Nomen Nescio 16:35, 18 January 2006 (UTC)

If you talk about "overrule the law" you ignore the presidential position that the constitution is on his side on war matters and that statutes passed by Congress cannot diminish those powers. They were, after all, strong enough in 1863 to free millions of slaves. Rjensen 16:57, 18 January 2006 (UTC)

No, it is exactly my point. The theory is advanced that the Constitution itself warrants the President unique discretion in interpreting and applying the law. In effect, they claim, the Constitution says since he is the law, logic dictates, he can not break the law. This brings us to the fact that by adopting this position the President can do things he sees fit ("overrule"), even if the actual text of the law would prohibit such an action. (i.e War Crimes Act of 1996, United Nations Convention Against Torture, Habeas Corpus, FISA, et cetera)--Nomen Nescio 17:08, 18 January 2006 (UTC)

That's an interesting point but the way I read it the president claims the law--that is the Constitution-- is on his side when it comes to war powers and foreign dealings, and only then. Congress cannot amend the Constitution by a simple law, so if it tries to abridge his war powers that is null and void. When is a law passed by COngress not a law? when it conflicts with the Constitution. Can the President do things like abolish slavery by proclamation, using the war powers. well yes indeed--isn't that agreed? Rjensen 17:18, 18 January 2006 (UTC)

There is a new law banning torture. Oddly enough this was already prohibited under US and International law. The reason for not adhering to these laws is exactly the debated principle: the President has the right to break the law when the law prevents him from doing his duties. This was used to show why torture could be allowed. Hence the current McCain Detainee Amendment. Nevertheless, Bush in his signing statement claims he can discard this law if it hinders him in his duties. This is an example of what the current theory holds. Nevertheless it is factually incorrect. Please read the sources I supplied above, and in the critics section, for more detail.

As to this being only applicable in a time of war, again reading the critics comments there is doubt as to the veracity of that statement. However, that is irrelevant since the President has declared war on terrorism which at this time is limitless. Nobody can say when it will end and according to the Bush administration the battlefield is the entire world. As long as the Executive refers to terrorism, which is possible indefinitely, he can invoke these powers that place him above the law. --Nomen Nescio 17:32, 18 January 2006 (UTC)

Does the president have the war power to abolish slavery? yes. Does he have the power to seize a steel company no-- Alito repeatedly turned to YOUNGSTOWN SHEET & TUBE CO. ET AL. v. SAWYER (1952) for guidance. What's in between? Interesting question. Are we in a time of war (yes, says Congress--it did vote the war on terrorism). Is that war politically controversial? I don't think so, for Kerry campaigned vigorously a year ago on the position that he could wage the war on terror more effectively than Bush. "Above the law" --well that phrase certainly prejudges the issue, doesn't it? Wiki is not allowed to take sides in controversial issues. We are only allowed to present both sides. Rjensen 18:16, 18 January 2006 (UTC)

There are several issues here: 1 Is there a "war?" This question is debated by legal scholars. Most importantly, how does one have a war without another country as adversary? See jus in bello. 2 When will this war be ended? 3 Is the Presidents power limited to US and the actual battlefield? Important since the Bush administration introduced a virtual battlefied, in effect the entire globe. 4 Warrant his war powers dismissal of US and international law? 5 The politics of this war might be interesting but are not important here. However, it is controversial. Otherwise people around the world would not react the way they did. Clearly the way the world and the US citizens were misinformed, and the proposition the US administration no longer is bound by international law have not helped. 6 Is not any law that has been accepted constitunional? Or in other words, would a law in violation of the Constitution not be at any time illegal? Hence, how does the Unitary Executive have the need to dismiss such laws?

As to POV, clearly there is the view this theory places the President above the law. At the same time others note (see the sources!!!) that such an interpretation of the Constitution is incorrect. Both should be mentioned, and both are mentioned. Hence, I fail to see the problem.--Nomen Nescio 18:32, 18 January 2006 (UTC)

is there a war in Afghanistan that makes war powers operational? President and Congress both say yes. Does the rest of the world agree about Afghan war? yes. (Note the IRAQ war is controversial but the war act of Congress against terrorism in 2001 is at issue here. Do law profs disagree? If so Wiki should quote real law profs by name not anonymous high school students. Rjensen 18:46, 18 January 2006 (UTC)

This is getting tedious. Apparently the legal experts in the sources are "anonymous high school students." Start by reading the material at hand and after you have done that we can discuss the matter and try to find compromise.--Nomen Nescio 18:56, 18 January 2006 (UTC)

Respectfully, I'm no high school kid. I have been around since the Truman Administration and involved in creating and administering contract documents all over the world.

In order to discuss this issue fully it must be recognized that the "theory of the unitary executive" can't really be understood outside of a larger context which includes social, political and economic as well as legal issues. WhenNomen Nescio says "I fail to see the problem", that's the problem.

1.) Signing statements have no constitutional of legal leg to stand on 2.) Congress has the power to Declare War (which it has not done here) or to issue Letters of Margue which is what in fact it has done by authorizing the use of force to go after a specific pirate (Osama bin Ladin) in a particular way. It has limited this authority as is its right since under the Constitution Congress has the responsibility to make the rules of war 3.) The argument that because Congress has funded a Deparment of Defense in the Executive Branch, and since as unitary executive of the Executive branch, The President is in control of the Executive Branch, thus the President is in Control of the Defense Department and thus its Commander in Chief even though not specifically called into service by Congress as is necessary for the president to be Commander in Chief of the Nations Armed Forces, is legitimate. 4.) The extension of this argument that as Commander in Chief of the forces assigned to the Defense department of the Executive Branch the President can ignore his oath and responsibility under Article II to preserve, protect and defend the Constitution of the United States and the responsibility it gives to Congress to determine when to Declare War, and to make the rules for War and his responsibility as a citizen of the United States to obey the laws of the United States is specious and absurd on its face. 5.)The argument that he can kidnap, torture, murder, hold without due process, unreasonably subject to search and seizure without warrant whatever he wants, sets him up as a tyrant and leads to a long train of abuses which constitute impeachable offenses. A. Lying to (intentionally misleading, or failing to tell the truth, the whole truth and nothing but the truth) to Congress is an impeachable offense. B. Violating his oath to preserve, protect and defend the constitution by putting forward the theory of the unitary executive is an impeachable offense. C. Felonies such as bribery, kidnapping, torture, murder, holding American citizens without due process, unreasonably subjecting American citizens to search and seizure without warrants are High crimes and impeachable offenses. D. Incompetence in administering his office is an impeachable offense.

Federal Street 14:23, 26 January 2006 (UTC)

article is a mess

Besides the POV such as "boundless authority", someone rearranged the article to make parts of it make no sense as they refer to things which do not appear until later in the article. Someone needs to clean this up VViki 23:07, 18 January 2006 (UTC)

How is mentioning what critics say POV?--Nomen Nescio 01:02, 19 January 2006 (UTC)

Simon Dodd's problem with perceived POV

After seeing some of the criticism I have some questions for Simon Dodd:

1 How is it you get to pick what sources can be trusted? Are you suggesting we limit ourselves to Fox News?

2 Regarding your problem with "boundless." If the President is the primary source of power, even capable of ignoring Congress or the letter of the law, what then is the exact boundary to his "authority?" More to the point, what can't he do in his role as Commander-in-Chief when his sole duty, according to the Constitution, is to protect US citizens. What law can he not break?

3 How is it you get to pick what to include from what critics say? Clearly, the paragraph you object to is based upon comments made by legal scholars. I know, it is not Fox News, but to deny mentioning their analysis, amounts to censoring information you feel should not be shared. Once again if the information is correct, you do not get to delete it on the grounds of having another POV than the source.

4 If you accept the contents is correct what is the problem? What you call POV, is merely what sceptics advance as another interpretation of the theory advocated.

5 What is terrorism? This is such a difficult definition, that it can be used for many things. As we already have learned, because apparently animal and human rights groups have been investigated under the current anti-terrorism laws. If many things qualify as terrorism, the war on terrorism could last indefinitely. Effectively granting the President war powers untill ... when?

Please refrain from suggesting bias, simply because you want the article cleansed of dissenting views. As you are well aware the sources are numerous and, contrary to your evidently erroneous assumption, they are also reputable. --Nomen Nescio 06:31, 20 January 2006 (UTC)

Norman, I think you're having a serious misunderstanding of my point. As I said in my edit history, my problem is not with the substance of that section, but the style in which it was (and to an extent, still is) written: the choice of words and phrasing. I'm not suggesting that the same . Of course Fox News is not a trustworthy news source, in the same way that Free Republic, Daily Kos and the Democratic Underground are, without exception, untrustworthy sources; they should never be cited, period. They aren't news sources, they are propaganda outlets for their respective parties. This has nothing to do with my being a Republican and your being a Democrat; I have no dog in this race, particularly since I seriously can't imagine anyone with a narrower view on the powers of the executive than I have. I'm not saying that "the article cleansed of dissenting views," I'm saying that you must present them - that we must write this article - in a NPOV tone, though, and you must cite neutral, or at least reputable, sources - yes, the WaPo is a neutral source, and I'll even give you the New York Times. But Fox News? The Democratic Underground? Are you kidding? Simon Dodd 15:16, 20 January 2006 (UTC)

Incidentally I can't resist adding: it seems to me that you understand this, because instead of reverting my edit of the tone, you adapted it instead, in a manner which now remains NPOV. Simon Dodd 15:18, 20 January 2006 (UTC)

First, don't confuse my trying to avoid an edit war with conceding to your view of the article. Second, you still have not explained how comments taken from legal experts (i.e. "boundless") make this paragraph POV. Feel free to answer the questions above. Third, altough you are correct in dismissing FOX News I still think denying the No 1 newssource in the US as reference is unwarranted. Meaning, sources are sources and we can not discard them just because we think they are politically motivated. Heck, if it were possible I would ban every major US media.--Nomen Nescio 01:54, 21 January 2006 (UTC)

There is a simple way to resolve this. If the United States is a nation of laws then its branches of government take their authority from the constitution. The specious arguments and original research of Samuel Alito and the Federalist Society demonstrate a serious lack of judgement, an absence of a strong moral compass and an inability to tell right from wrong. This does not auger well for people who would be Lawyers or judges.

When The President is required to take an oath to preserve, protect and defend the constitution he must necessarily violate that oath and commit an impeachable offense in order to advance the argument that under the theory of the unitary executive he is above the law and has the right to declare war and that Congress and the Courts have no power to interfere.Federal Street 17:49, 26 January 2006 (UTC)

Good article!

Despite any near-edit-war or near-POV-dispute that may be going on now, this is a Good article. It is rare that an article on government, especially a contentious current issue, actually teaches me anything about the issue—usually it's mired in minutiae. This article is the exception. Thanks to those who made it so. --TreyHarris 22:30, 22 January 2006 (UTC)

Article removed from Wikipedia:Good articles

This article was formerly listed as a good article, but was removed from the listing because the article fails to cite its references. --Allen3 ^talk 22:51, 22 January 2006 (UTC)

I don't understand; Wikipedia:Good article says, "a good article is not the same as a featured one and is allowed to miss some criteria." There appear to be plenty of citations; they're just not in the standard format (they're littered among the article and links sections). Are citations a special criteria that may not be missed? If so, the good article page should specify this. --TreyHarris 23:03, 22 January 2006 (UTC)

• References are listed as a must requirement under the What makes a good article? section at Wikipedia:Good articles. In addition, weakening the references requirements for Good Articles has been discussed several times at Wikipedia talk:Good articles and Wikipedia talk:Good articles/archive 1 with the requirement being retained after each discussion. You are welcome to raise the issue again, but it is unlikely that any article that does not fully comply with core content policies such as WP:V or WP:NOR will ever be considered good by the majority of Wikipedians. --Allen3 ^talk 23:46, 22 January 2006 (UTC)

There are plenty of sources. Are you saying that when statements are directly linked to the source, in stead of having them mentioned at the end, that would suffice?--Nomen Nescio 01:46, 23 January 2006 (UTC)

Oops, I missed the the embedded HTML links. As compliance with the Manual of Style is not a GA requirement I have restored the listing. --Allen3 ^talk 11:22, 23 January 2006 (UTC)

A bit heavy on the Bush examples

As much as I dislike Bush, this article, though well written, is fairly heavy handed in its examples of Bush's use of power. Frankly it reads much like an anti-Bush article in the guise of an article on unitary exec theory. Personally I'd like to see more examples of how other presidents have used their executive powers to qualify congretional declarations to even out the bias.

"Theory" vs. "doctrine" (retitle needed)

Imprecise terminology. Political science classifies UE as a "doctrine", not a "theory". Specifically, UE is a doctrine of constitutional interpretation based on the application of departmental theory. The Unitary Executive doctrine is to departmentalism as the Monroe Doctrine is to isolationism as the Brezhnev Doctrine is to Marxism as the Kirkpatrick Doctrine is to domino theory as the Bush Doctrine is to preemption. The "procedural aspects" of UE (again, imprecise terminology - a theory isn't "characteristically defined" by an "aspect" - it's "defined" by a "set of principles"!) rightly belong in a seperate article that would appropriately be entitled "Departmental theory." That way, if anyone wants to write articles on the "Unitary Legislature doctrine" or the "Unitary Judiciary doctrine" all three can reference Departmental theory without redundance. (Of course, the latter two aren't in the news right now, but both follow from departmental theory in the same way.)

I'll be happy to work on the departmental theory article when I get the chance, but I haven't been registered long enough to retitle pages, so someone else needs to change "Unitary Executive theory" to "Unitary Executive doctrine." Sorry - political science students get prickly about incorrect terminology! --Jdfawcett 20:24, 26 January 2006 (UTC)

Thanks for your comments, and please keep contributing. However, for some strange reason, in the public debate (see sources) and also by legal expert, the term theory is used. As political science student you probably know best, but how would you explain that?--Nomen Nescio 22:50, 26 January 2006 (UTC)

You're welcome. Your concern is reasonable, especially considering the fact that there has been some misuse, and I think I can address this pretty adequately with two answers.

First, regarding consensus: the term theory certainly has been used in public debate, but not exclusively, or even overwhelmingly (see sources). There are some instances of legal experts using it incorrectly. There are more incidents of legal experts using it correctly but unclearly: for example, Alito observes that "The theory is the Constitution says the executive power is conferred on the president," but here he is addressing department theory, and specifically what department theory says about "who within the executive branch controls the exercise of executive power." This fact is evident when he earlier refers not to a "theory" of the unitary executive but a "concept of the unitary executive". This last observation does much to explain my previous point: that the term is sometimes used incorrectly by legal experts since it can can rhetorically (though not technically) be used interchangeably with "concept" and "doctrine". But these are aberrations - most often, "legal experts" - that is, judges, lawyers, legislators, and political science / law scholars - use the term "doctrine" rather than "theory".

More importantly, though, I'm not sure how relevant consensus terminology is to our pursuit of accuracy. We don't need to delve into epistemelogical problems of who defines what a word "means" here because there's little to no dispute over what a "theory" is and what a "doctrine" is. There are, needless to say, connotations to both of these words which affect their popular use: just as, for example, proponents of Intelligent Design prefer the term "theory" to "hypothesis" because the former is more epistemelogically prestigious, a Unitary Executive "theory" sounds more authoratative than a Unitary Executive "doctrine". (Not to propose that UE advocates are using "theory" disingenuously in the way that I think ID advocates are; just that to call UE a "doctrine" instead of a "theory" probably feels like a demotion.) It's not a demotion. Some people mistakenly give "doctrine" pejorative connotations because it's also used in religious thought and seems to suggest something to be adhered to irrationaly; but in the sphere of government policy, a doctrine does not carry these connotations. (The wiki alludes to this.) To call an idea a doctrine is simply to recognize it as the historical manifestation of a theory, nothing more, nothing less. Nobody says "The Truman Doctrine? That's just a doctrine, not a theory!" We shouldn't do so here, either.

I seem to remember some discussion of this in Chemerinsky's Constitutional Law Principles and Policies, and in Vago's Law and Society, both of which are pretty accessible introductory level textbooks, if you're interested. --Jdfawcett 00:16, 27 January 2006 (UTC)

Interesting stuff and even I can understand it, shall we keep theory and mention doctrine also, with your caveat? Your suggestion on literature is welcome. I will take a look in the library.--Nomen Nescio 01:32, 27 January 2006 (UTC)

Thanks, and of course I don't mean any condescension. That said, is this actually the sort of edit that merits a keep-mention "compromise"? It's a neutral technical correction determined by verifiable usage. --Jdfawcett 13:00, 27 January 2006 (UTC)

You would want to delete the theory, and only keep doctrine? Or, would it suffice to rename it doctrine but then mention the thing about theory?-- Nomen Nescio 05:14, 29 January 2006 (UTC)

Rewrite

I did a pretty extensive rewrite, which primarily involved the reformulation proposed below under "theory" vs. "doctrine". There were also some basic grammatical, spelling and clarity problems, as well as significant structural issues, such as interspersing the definition of UED with observations about the Alito hearing. (Such observations are relevant to UED, especially right now, but they should be kept in a seperate section from the part where we're simply trying to define UED.)

• I think you need to give some thought to the mindset this came out of. The Kennedy Assassination, CAP,a lifelong Federalist Society membership, a lifelong fascination with overthtrowing the Warren Court, setting back the clock on the acknowledgement that minorities and women had human rights and the pandering to the Reagan era neo-cons hawks in a post Vietnam, post Nixon context.Federal Street 15:57, 27 January 2006 (UTC)

These may be valid concerns but I don't see their relevance to my rewrite. If you'd like to build on the entry with some discussion on these issues as relevant to UED, please do so. My rewrite didn't address these issues. It isn't proposed as some kind of comprehensive final draft - only a reorganization of the material already present. In the meantime, it's probably not very productive to impugn the "seriousness" of my thought. --Jdfawcett 03:36, 29 January 2006 (UTC)

• A judge with no judgement, no strong moral compass, no sense of right or wrong, the ability to approve the strip search of a ten year old girl or despite a lifelong friendship with Andrew Napolitano founder of CAP decalre that there was no knowledge of what CAP was about,Federal Street 15:57, 27 January 2006 (UTC)

Your observations about Judge Alito totally merit consideration in the article on Judge Alito. (I can only assume that you're referring to Alito - these bullet points are all pretty non-sequitur.) This is an article on UED. Alito is only relevant to UED in his capacity as a vocal advocate of OED. His views on the constitutionality of strip-searching a ten year old girl have to do with his (I would say incorrect) interpretation of the 4th amendment. UED is a seperate issue, relating to his interpretation of Article II of the Constitution. --Jdfawcett 03:36, 29 January 2006 (UTC)

• The idea appears to be that rather than a frontal assault on the constitution as read by the Warren Court, Roe vs Wade, Brown vs Board of Education, the same obkect can be obtained through a gradual wearing away or attritionFederal Street 15:57, 27 January 2006 (UTC)

What? You may very well be thinking more "seriously" than me, but you aren't doing the work of trying to communicate your thoughts. Specifically, I have no idea what you're referring to by "The idea" and "that", because you don't actually specify either - neither do you articulate what is being gradually worn away, or what attrition has to do with anything. You're just adding bullet points completely out of context. Sometimes, as in the previous point, they aren't even complete sentences. --Jdfawcett 03:36, 29 January 2006 (UTC)

I also removed the architectural analogy. I think this analogy might be useful but its exposition here is pretty unwieldy. Statements such as "It offers some possible advantages but also has major risks and uncertainties and would be such a substantive shift in the form of the contract as really to require its ammendment by means of a constitutional convention to be adopted" are incredibly confusing

• Its only confusing if you are unfamiliar with contracts and checks and balances. The basic tripod is the contractor (Executive) performs, the owner (The People) pay, the architect (Congress) decides.Federal Street 15:57, 27 January 2006 (UTC)

It's not "only" confusing if I'm unfamiliar with the underlying concepts - writing can also be confusing when you aren't writing clearly. Again, I think this analogy can be really useful, and I've seen it written elsewhere, such as Dailykos, with much greater clarity. Try not to attack my critiques by impugning my expertise, or that of your readers - instead, address the critiques themselves. --Jdfawcett 03:36, 29 January 2006 (UTC)

• The architect acts as an agent of the Owner (Congress represents the People) to draft the contract documents and specify the scope of work (make Laws). The Contractor (Executive) only performs what the contract documents (Laws) instruct him to do. The means and methods of accomplishing the work are up to the contractor (Executive). Federal Street 15:57, 27 January 2006 (UTC)

This is a much less confusing exposition. You don't mix metaphors and you specify your referents. Note that my familiarity with contracts and checks and balances hasn't changed - rather, your exposition has changed. --Jdfawcett 03:36, 29 January 2006 (UTC)

• That's an important point to make so if you don't mind, I'll put it back in. If you still don't understand it ask me about it and I'll answer your questions.Federal Street 15:57, 27 January 2006 (UTC)

I understand it, thanks. If the point's important, it should be communicated clearly. --Jdfawcett 03:36, 29 January 2006 (UTC)

- what this particular statement means to say is that "there are possible advantages to the UED, but also major risks and uncertainties. Also, an interpretation based on the UED would be a substantive change to "the form of the contract" defined by contrary interpretations - specifically, and as opposed to these contrary interpretations, the UED doctrine would require require a constitutional convention to be held and amendments made" in unspecified instances.

• The UED is a different form of contractural arrangement without the checks and balances. In the construction trade its called a Design Build relationship. The first point is that its a completely different form of government. The checks and balances are removed in order to facilitate production. While that makes it uncertain and risky, if all goes well it could make things proceed to a conclusion more rapidly. Federal Street 15:57, 27 January 2006 (UTC)

Again, this is much clearer writing. Notice, for example, that in your original writing you talk about a "design build" relationship instead of a "Design Build" relationship - you didn't make it clear that you were using vocational jargon using the standard grammatical conventions of capitalizing titles or emphasizing jargon with quotes or italics. Instead of writing clearly for me, write clearly for your readers. --Jdfawcett 03:36, 29 January 2006 (UTC)

This isn't at all a counterargument to the architectural analogy - only a criticism of the way that the analogy has been presented. It's trying to pack too much into too small a space, and as a result it moves to quickly and moves back and forth from the metaphor to the metaphrand without explanation. Also, it needs to be noted that the architectural analogy isn't descriptive - it's argumentative, which is why it concludes by observing a "nightmarish result".

• The point is that checks and balances, while preventing the unchecked worst case nightmare, may not offer the fastest possible response. Potential risk has to be weighed against convenience. If the idea is to maximise security then UED should never be considered, its unsafe at any speed.

Descriptions don't have "points" - arguments do, and UED's advocates obviously disagree with this argument. It should thus, if it is to be included, be included as criticism, not as definitive. --Jdfawcett 03:36, 29 January 2006 (UTC)

• If the idea is that we are really, really desperate and have nothing left to lose, as might be the case with Israel and Hamas where the war on Terror is being waged on Apocalyptic terms, then your UED offers a quick response with no thought of consequences to slow it down. Its your basic self actualizing, the only law is necessity, suicide bomber strategy.

My UED? Why are you referring to this as my UED? Certainly not because I ever claimed it as mine. Instead of identifying me as an advocate of UED, I'd encourage you to think of me as an opponent of UED who is trying to improve an argumentative, disorganized and poorly written wiki. There is little debate in legal scholarship, even between its advocates and opponents, on what UED actually "is". When describing UED you say that "It [is] your basic self actualizing, the only law is necessity, suicide bomber strategy", but you aren't talking about what it IS - you're talking about what it signifies. UED may very well be, for example, the manifestation of a political ideology where "the only law is necessity", but it is not that by definition - by definition, UED is a very specific interpretation of the II article of the constitution which may or may not be correct. --Jdfawcett 03:36, 29 January 2006 (UTC)

It comes from a critique of UED that first, to my knowledge, appeared on DailyKos. I think that this analogy can probably be revised into something neutral - but someone does this, it either belongs in a "critism" section, must be removed from the "definition" section, or must be left in the definition section but supplemented with a counterinterpretation. I don't know how necessary the analogy actually is, but if someone else would like it in they should consider my suggestions.

• It actually comes straight from Mosaic law, but that analogy would only be relevant if you consider the Constitution to be a sacred and binding contract in the same way as the covenant of the Sons of Israel to be law abiding was a sacred and binding contract.

The analogy between our three branches of government and contractor, owner and architect does not "come from" Mosaic law. Even if you want to propose that the moral / intellectual conception of a contractderives from Mosaic law (and even here you're wrong - it appears as early as the Code of Hammurabi), the specific analogy that we're referring to that specifically talks about American tripartite government's relationship of contracter/owner/architect was first popularized in DailyKos. In any case, I'm not questioning the necessity of the analogy because it's irrelevent - I'm questioning its necessity because I think that the present exposition of the analogy is more confusing than clarifying. --Jdfawcett 03:36, 29 January 2006 (UTC)

• In our 3000 year old tradition of Mosaic law we have always held the Written Law to be sacred, carved in stone, the stone placed in an ark, the ark housed in a sactuary, sovereign over the spoken word of the king or Pharoah. "Thou shalt have no gods before me" is explicit.Federal Street 15:57, 27 January 2006 (UTC)

Again, contract law is older than Mosaic law, but more importantly, the moral/intellectual derivation of contract law is irrelevent to my critique of the analogy as irrelevent. --Jdfawcett 03:36, 29 January 2006 (UTC)

I really sense a profound misconception, or at least misarticulation, of UED. For example, the article reads that "It is argued that the world today is a faster paced environment than it was in the time of the American Revolution and that the constitution is a contract badly in need of Ammendment." True enough, but this argument has nothing to do with UED.

• That's the UED argument, whether it is true or not would remain to be proved.Federal Street 15:57, 27 January 2006 (UTC)

That's not "the UED argument" - that's one of many arguments used to support the UED. The UED can be "true" without "the world today [being] a faster paced environment than it was" - it can, in fact, be true despite the world today being a faster paced environment. UED is not an argument. It's an interpretation. We name this interpretation UED, "whether it is true or not". --Jdfawcett 03:36, 29 January 2006 (UTC)

UED doesn't claim that the constitution needs amending - UED claims that its powers are already inherit in the constitution.

• Actually, I don't think it does claim that. It allows there are three branches of government and that the President is a unitary executive of the Executive branch. so far so good.

You're incorrect. Read Alito's defense of UED. He observes, for example, that Article II refers to "THE executive power" rather than "MANY executive powers" as evidence that the UE doctrine of hierarchical administration is inherit in the constitution. Whether this claim is justified or even rational does not change the fact that this is indeed the claim being asserted. --Jdfawcett 03:36, 29 January 2006 (UTC)

• It allows that where the Executive branch has a number of Departments, the unitary executive is in charge of the departments. again, so far, so good.

• Now it ignores the fact that those departments exist at the whim of Congress which can withold their funding at any time, and argues that only the unitary executive has the right to regulate them. That's connected to the idea of signing statements which amount to the same thing as signing a contract with exceptions.

• What Congress should do is add language either to the effect that if the President signs with exceptions it will consider that a veto, or that if the President signs it will consider any exceptions as unconstitutional as his choices are to approve or veto.

• Clearly the unitary executive has no right to lie to Congress as this is an impeachable offense. To say anything other than the truth, the whole truth and nothing but the truth, or to intentionally mislead or misrepresent intelligence is to lie and an impeachable offense. To argue that Congress is not cleared to know what information the Defense Department has collected is to challenge the right of Congress to exercise its constitutional powers of oversite.

• Were this argument to be allowed it would amount to a major change to the constitution. It would be equivalent to a judge allowing a contractor to say to the architect I have redesigned your plans and hold that my contract allows me to do so. To agree with that would totally rewrite the basic premise of contract law that goes back to the bronze ag, that the written contract which has been signed off on represents the meeting of the minds, not an unsigned change order.Federal Street 15:57, 27 January 2006 (UTC)

You make a compelling counterargument to an argument that isn't being made. Your counterargument does not establish what UED claims, which is what this article is about - rather, it establishes that what UED claims may be irrational, or incorrect, or immoral. This is not the place for making such arguments, at least not outside of a "criticism" section.

Another example: what this article calls the "procedural aspect" of UED is certainly significant, but the procedural aspect isn't definitive. On the contrary, the procedural aspect (better called the administrative aspect) is only one element of UED's definitive consolidation of the executive branch.

• The argument that it is not the finished document alone, but also all schemes which have been considered and rejected which form the contract document, is equivalent to a contractor building according to the schematic design rather than the finished working drawings on the grounds that his bid was based on a take off from the schematic design and never updated. The role of stasis decis and precedent is not procedural, its structural.Federal Street 15:57, 27 January 2006 (UTC)

First - it's "stare decis", not "stasis decis". Second - "precedent" is not synonymous with "history"; a precedent is a judicial statement that establishes a legal rule, not the history of contract negotiations. These terms have come up a lot in the news lately, but in the context of Judge Alito's opinion of upholding Roe - NOT in the context of Judge Alito's opinion on UED. They have absolutely nothing to do with the "procedural" and "structural" aspects of a contract; neither does the "equivalence" of the "argument" to which you refer with the architecture metaphor establish, or even have any relevance, to the fact that the administrative aspect of UED is only one manifestation of its conceptual jurisprudence. --Jdfawcett 03:36, 29 January 2006 (UTC)

I also moved discussion of the Justice Department's "adoption" of UED regarding the EPA from the legal status section to the history section. This makes more sense both structurally, since the incident is indistinguishable from all of the other historical invocations of UED, and legally, since there's no jurisprudence regarding the legal relevance of signing statements. [7]

Ultimately, I'd say that the differences in my version are more structural and substantive. My aim was not, notably, to ameliorate any kind of bias, but simply to better exposit the ideas and conflicts surrounding UED. --Jdfawcett 23:26, 26 January 2006 (UTC)

Looks better, but I will take a more closer look tomorrow. Did you forget to log-in? The edit you describe has been done by 129.174.54.77. However, this appears to be also a revert several edits back. By doing so some later edits were lost which I restored. Thanks for the work done.--Nomen Nescio 01:38, 27 January 2006 (UTC)

Yes. There was apparently an edit made after I began the rewrite, which was so extensive that I couldn't readily compare the two to find the edit. Thanks. --Jdfawcett 13:03, 27 January 2006 (UTC)

May I thank you both for a very fruitful discussion. At least to me the article is looking better, and by you both exchanging arguments, I think I understand the theory much better. Keep up the good work.-- Nomen Nescio 05:33, 29 January 2006 (UTC)

Censorship

Removed the last sentence in the Alito section "And in effect, support the view of the Bush administration that as Commander-in-Chief President Bush can not be restrained by law, national or international.." because this is clearly not the Presidents position. Unless you can link to a real quote to in this regard, this is clearly a personal POV (links to pieces stating this as opinion do not count). ChrisL 20:37, 27 January 2006 (UTC)

Clearly, only sources supporting Alito count. Denying the view of critics is a ludicrous proposition, so I will revert this POV pushing.-- Nomen Nescio 23:46, 27 January 2006 (UTC)

I don't think that there's a difference of opinion here - you're both just reading the paragraph differently because it's poorly written. Specifically, the second sentence is a fragment - it has no grammatical subject. Cx assumes that the "view of the Bush administration" is being asserted categorically - Nescio assumes that the "view of the Bush administration" being asserted is being asserted by his opponents, and not to be necessarily understood as definitive. Neither interpretation is justified because, again, the fragment begins with a conjunction and has no subject. People, write in complete sentences! --Jdfawcett 00:16, 28 January 2006 (UTC)

Thank you for the suggestion, have slightly reworded the comment. Hope this is better. Although, one might say that even the Bush administration has made the claim itself (i.e. arguments for refuting the Geneva Conventions, arguments suggesting torture is not illegal under the current cirumstances, through the signing statements). Studying these assertions, IMHO, can only lead to the conclusion the administration based these claims on exactly this argument.-- Nomen Nescio 00:43, 28 January 2006 (UTC)

Better. Although still biased (IMHO), it is now at least factual. ChrisL 13:13, 28 January 2006 (UTC)

Citation

Can somebody please correct the citation to my article (listed under critics). It was not written for or originally published by Counterpunch. It was written for and published by Findlaw. The original URL is http://writ.news.findlaw.com/commentary/20060109_bergen.html. Thanks. Jennifer Van Bergen

Thank you for pointing that out, feel free to use your free account and contribute in making this article better.-- Nomen Nescio 05:28, 29 January 2006 (UTC)

Notes

Have begun changing references to notes, but there is still alot to do. Will try and complete this ASAP. Feel free to contribute and rearrange so the article has a better lay-out.-- Nomen Nescio 05:36, 29 January 2006 (UTC)