Conservative Lawyers Defend Holder (and the Unitary Executive)

by Doug Kendall, President, Constitutional Accountability Center

Progressives, outraged by the Bush administration’s conduct of the “war on terror,” have come to hate the idea that the President is a “unitary executive,” and for good reason: this idea was abused by the Reagan Administration to attack the very idea of “independent” government agencies then abused again by the Bush administration in support of the use of “enhanced” interrogation and surveillance techniques. But I’m guessing this letter by a number of prominent conservative lawyers in favor of the confirmation of Attorney General nominee Eric Holder will be just the first of many developments over the next 4 years that make progressives rethink their unbending opposition to the idea of a strong, even dare I say, unitary, President Obama.

The letter, signed by 10 conservatives including former Bush I Attorney General William Barr, is devoted mainly to a glowing account of Holder’s stellar credentials for the position. But the letter also defends Holder on the issue that forms the heart of the case Republican Senators such as Arlen Specter are trying to make against Holder: President Clinton’s pardon of Marc Rich. Here’s what the letter says: “The short answer to any and all of these questions is that the power to issue a Presidential Pardon is a clear plenary power of any President. It is his or hers alone to execute and justify. A Presidential pardon is then unreviewable. Virtually no one disputes that Eric was an outstanding Deputy Attorney General in every respect, President Clinton’s pardons notwithstanding.”

This defense of Holder is a classic articulation of the idea that the President is a unitary executive. It also happens to be essentially right. It is a historical fact that our Constitution establishes a “unitary” executive: the executive power is vested in the President, not, for example, a cabinet or a privy council. The abuse of this basic principle has come where conservatives such as Dick Cheney and John Yoo have made unsupportable arguments about how the President’s “unitary” authority over the executive branch somehow trumps explicit grants of congressional power. The President is not a King – he is subject to the Rule of Law – but the Constitution does give the President broad authority to run the executive branch. And the pardon is one of the President’s most unfettered powers. One can fairly criticize Eric Holder for not doing more to stop President Clinton from pardoning Marc Rich — Holder has chastised himself — but it’s difficult (and more than a little hypocritical) for conservatives, who have spent decades arguing about the unique powers of the President, to place the blame for the Rich pardon at Holder’s feet.

Progressives need not restrain their critique of the Bush administration’s abuse of power in order to recognize the basic fact of the President’s broad control over the executive branch. And progressives who like Obama’s policy leanings, but may not trust all the members of the “team of rivals” he is assembling around him, may come to like this more than they realize today.

Originally posted at the Huffington Post.

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