Talk:Unitary executive theory/Archive 1

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)

As the Discussion of Departmental Theory makes clear, a branch may propose and act on any theory. This is both allowed and expected to trigger a check and balance much as is the case with Newton's Third law. Thus what the theory of the unitary executive really does is anticipate that the result of the application of the check and balance may eventually result in agreement, in which case it will either enter into unitary executive doctrine, or be rejected, or failure to agree in which case the ultimate autority of the People will be required to resolve the matter. Sea level 17:32, 31 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)

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 probhttp://en.wikipedia.org/w/index.php?title=Talk:Unitary_Executive_theory&action=edit&section=11ably 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 point is whether its valid to consider mindset. If the person drafting the argument has demonstrated good judgement, a strong moral compass and the ability to distinguish right and wrong then even Alan Dershowitz arguing that torture might be legal if a warrant for it has issued might be worth hearing, but the same standard would argue less standing for the unitary executive theory.Sea level 21:40, 29 January 2006 (UTC)

It's completely valid to consider Judge Alito's mindset in the article on Judge Alito, but not in an article on UED. He is not "the person drafting the argument" - he is "a" person "advocating" a legal doctrine that was around well before he was born. Please read previous discussion. Your propososition that "if the person drafting the argument" has various virtues then the argument "might be worth hearing", and if it doesn't that it has "less standing" is definitively [ad hominem]. The "worth" of an argument has nothing to do with its author and everything to do with the merits of the argument itself. Even if you'd like to embrace ad hominem as a legal criteria for evaluating jurisprudence, moreover, this article is not about proving whether an argument is "right" or "wrong", or even about whether it is "worth hearing" - it's just about defining what the doctrine is. --Jdfawcett 12:58, 30 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 object 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)

The mindset appears to be...attrition rather than frontal assault. Sea level 21:40, 29 January 2006 (UTC)

"Attrition" and "frontal assault" are not "mindsets", whatever that is - they're strategies. You seem to be proposing some kind of strategy that has as its "object" to be "obtained" a "gradual wearing away" of the "constitution." If you'd like to write an article on that strategy, please do so and anyone interested can read and debate about it there. Here we're writing about UED - what it IS as a doctrine, not what it SIGNIFIES in terms of some grand political strategy. --Jdfawcett 12:58, 30 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)

Definition should make clear; 1.) What is it that makes it what it is. 2.) What is it that makes it not something else.

The unitary executive theory can't be fully understood if it isn't compared to what it proposes to change. If we say what it is that makes the unitary executive theory what it is; then the constitution would be what is it that makes it not something else; and for that matter vice versa.Sea level 21:40, 29 January 2006 (UTC)

UED doesn't "propose to change" anything. You're not engaging with the fact that the UED does not propose to change the Constitution - on the contrary, it proposes that its authority is already there. Whether this latter proposition is legitimate is another question entirely. The point of dispute is not whether we should accept UED and reject the Constitution; the point of dispute is whether the UED is actually implicit within the Constitution or not.

By your (IMHO pretty phenomenologically dubious) hermeneutic of what a "definition should make clear": what makes UED "what it is" is its characteristic interpretation of Article II, and what makes it "not something else" is its characteristic interpretation of Article II. When you claim to know "the constitution" as "what it proposes to change," you're trying to claim interpretive authority: the constitution is what you say it is, and if UED says that it's something else it must be trying to change it. POV. Note that this article does not make any claims on what the constitution actually says; it only describes what UED claims that it says. --Jdfawcett 12:58, 30 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)

The unitary executive theory is to the constitution, as the theory of intelligent design is to evolution and the theory of global cooling is to the theory of global warming. Its a strategm designed to confuse and issue and to give equal weight to belief and science.

It definitively IS not these things. It may signify these things by your interpretation - it signifies a simple defense of what the Constitution means according to other people. Here we are only interested in what the Unitary Executive doctrine IS: what it "thinks" that the Constitution means, and how it has become historically manifest in various instances of American history. You have an interesting argument but this is not the place to make it. --Jdfawcett 12:58, 30 January 2006 (UTC)

You mention above that contract law goes back before Mosaic law. That may well be true, albeit so far as I can tell, our 3000 year old legal tradition recognizes few pagan precedents. Ken Kitchen describes early contracts as bound with alternating blessings and curses but even before they were first written down they were principles of common law that people recognized and were willing to agree to. The common law attitudes such as might makes right, and necessity justifies any behavior seem like conventions that we have long ago abandoned in favor of the principle that each of us is endowed at our creation with unalianable rights that governments have no say over.

You also point out there is a difference between history and precedent. Sea level 21:40, 29 January 2006 (UTC)

There's also a difference between the "going back" in terms of "precedents" that you discuss and the "moral/intellectual derivation" that I alluded to - I was not there, that is to say, discussing the law as a history of legal precedents, but rather as a manifestation of cultural norms and attitudes. But this is tangential. There are certainly critiques and counter-critiques to be made of UED in terms of the attitudes and principles that you allude to, but wikipedia is not about making critiques or proving something right or wrong.

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)

The point is that its our tradition that the written Law is sacred and sovreign over the dictates of tyrants. You could find written law codes that predate the ten commandments, but they are the decrees of kings.

If "the point" of including your analogy is to establish the supremacy of law, I fail to see its relevance in an article where neither side disputes the supremacy of law. Advocates of UED propose that the UED is codified in the Constitution and thus not a breach of law. The question in dispute is not whether or not "the written Law is sacred and sovereign over the dictates of tyrants" - the question in dispute is whether or not UED actually violates this sacredness and sovereignity. --Jdfawcett 12:58, 30 January 2006 (UTC)

The interesting thing about the written law of the sons of Israel is that it is worshipped in the Egyptian manner. An image of the god is carved in stone. The stone is placed in an ark, the ark is housed in a sanctuary.

The written law is considered sacred in and of itself like the essence of truth, wisdom, or beauty. It doesn't depend on the decrees of a king so it can last forever.Sea level 21:40, 29 January 2006 (UTC)

Sure, interesting. Just not relevant. --Jdfawcett 12:58, 30 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)

In the hearings Alito was quite specific that the unitary executive theory and any power it grants applies only to the executive branch.

No, he was quite specific that the Constitution grants these powers. No one claims that the UED grants powers. UED is not a law. It hasn't been voted on, hasn't been directly ruled on (see article). UED is a school of interpretation. --Jdfawcett 12:58, 30 January 2006 (UTC)

Now within that branch there are many different executive powers claimed under the unitqarey executive theory, but none of them have any weight outside the Executive Branch. For example so long as there is a Defense Department in the Executive Branch, the President may command it. That doesn't give him the right to declare war. He can talk about a war on terror but he shouldn't believe that just because Congress has authorized the use of force, that makes him commander in Chief. The Constitution says the Commander in Chief is called for only after ZCongress declares war. In reality he acts like a CEO of the Executive Branch and that's it.

Both Alito and the UED dissent from your interpretation here. Their interpretation may very well be incorrect and yours correct, but this article is not about which is correct. --Jdfawcett 12:58, 30 January 2006 (UTC)

Like any other CEO he is still bound to follow the law.

He can apply the principle of might makes right and kidnap, torture, murder, hold without due process or subject to unreasonable searches and seizures, but if he does so then under our constitution and its laws and most international laws, he's an outlaw and can expect to be impreached and fully prosecuted just like any other felon.Sea level 21:40, 29 January 2006 (UTC)

This article is not about whether or not UED is correct.

• 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.

Respectfully, I disagree. The unitary executive theory does make those arguments.

What are you disagreeing with? Irrationality is not an "argument". Incorrectness is not an "argument". Immorality is not an "argument". Full disclosure: IMHO, I personally think that UED is a gross misinterpretation of the Constitution, and an incredibly dangerous one. There's a difference between understanding what something or someone says and agreeing with it. We're here to help people understand what UED is, not to try to persuade them that it's right or wrong. --Jdfawcett 12:58, 30 January 2006 (UTC)

Bush uses the unitary executive theory to justify lies to Congress because as Commander in Chief of his Defense Department and its intelligence subdivisions he determines that Congress can't handle the truth.

Congress doesn't have sufficient security clearance to exercise its oversite over the Executive Branch.

The president adds that since its wartime, here using the unitary executive theory to declare it wartime or to declare war, security takes precedence over liberty and necessity over law. Then he goes on to follow the same logic to justify kidnapping, torture and murder at his discretion.

The argument he cites is that the constitution authorizes him as commander in chief to make whatever rules he deems necessary for the making of war. Despite that the constitution gives Congress that responsibility he argues that the unitary executive theory places whatever the Defense Department does under his control.Sea level 21:40, 29 January 2006 (UTC)

Either his argument says "that the constitution authorizes him" to do something, or his argument says that he can do something "despite that the constitution" says otherwise. It's the former. His argument can say that the constitution authorizes him even if in fact it does not. This wiki is not here to establish whether or not UED is constitutional; it's just here to establish what UED says.

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)

There are different levels at which we recognize precedent. The precedent of Common law may go back to the pre-historic dawn of time. For example the argument that the justification of government is the consent of the governed really goes back to common law. The idea that a precedent is a course of conduct once followed, may be as binding as any other legal principle.

Usages and customs of immemorable antiquity include many grounds on which no judge has ever dared to tread.Sea level 21:40, 29 January 2006 (UTC)

Sure. But precedent is not synonymous with history: those "schemes which have been considered and rejected" during the history of a contract negotiation, which were the referents of the terms "stare decis" and "precedent", constitute neither stare decis nor precedent. --Jdfawcett 12:59, 30 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]

I don't understand why you wouldn't consider the constitution explicit on signing. The President can approve or veto. If he veto's the veto can be overridden. The president has no power to make exclusions to the law, unless he wishes to hold he is above the law, which is an impeachable and possibly capital offense.Sea level 21:40, 29 January 2006 (UTC)

I said nothing about my own interpretation of the constitution. I've worked very hard to keep my own interpretations out of this wiki. There is no jurisprudence on signing statements, meaning: there has not been a single court case or a single law that we can appeal to. Anything anyone would have to say on this subject is speculative at best. Including your argument. --Jdfawcett 12:59, 30 January 2006 (UTC)

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)

On the issue of Unitary Executive Theory or Doctrine or Movement

I'm concerned that political science definitions alone may not be enough to fully grasp the intended social psychology of the proposed changes. It may be that there is presented here a theory which is tied to other theories as a doctrine and if so then that entire body of thought needs to be defined. If the doctrine is part of a larger social movement then that needs to be considered in context.Sea level 16:02, 30 January 2006 (UTC)

Rewrite Required?

After sending my kids to this link for a definition of UED, they came back to me more confused than enlightened. I just re-read the piece. I sincerely believe that the article is doing a poor job of initially explaining just what UED is, and the casual reader quickly just fades out without learning much. My suggestion is that rathing than immediately jumping into bolds and other mechanisms meant to latter pursue an opinion of the concept, the article needs to start simply with a definition of what UED is. If anyone rewrites this piece, would you please step back and start the piece with a simple, non-slanted, abstract. The pros and cons can come latter (or better yet, just summarized then expanded upon elsewhere). ChrisL 15:21, 30 January 2006 (UTC)

Why not propose what you would like to see for an introductory passage. As I understand it the introduction is supposed to be brief and yet it may be that the definition of even whether this is a singular theory or a doctrine involving a body of reinforcing theories and precedents is not entirely agreed upon as yet.Sea level 15:51, 30 January 2006 (UTC)

I'm not really qualified to propose, I just know that the intro (and the first page or two) did not really answer the mail of briefly describing. Perhaps the section "Aspects of Unitary Executive doctrine" is at least a little better as a neutral introduction and definition.

IMO: Much of the article has a definitive "slant". I give as an example the following sentence "If Congress doesn't like having the Executive branch spy on it, or innocent Americans, or kidnap, toture and murder innocent americans, " ... Why not just say "If Congress doesn't like having the Executive branch spy on it, or the rape of innocent women and children by administrative staff, ..."? These are both inflamatory and therefore slanted, which obfuscates (and trivializes) a complicated topic. However, this is just my opinion, so all I am really asking for is at least an introduction that provides a concise and neutral definition of the topic. The rest of the piece can "slant" away (so long as it is factual). ChrisL 17:25, 30 January 2006 (UTC)

Good catch, I shouldn't have forgotten to mention the rapes.

Here's a few of the reports. Dec 7, 2005 Bush administration kidnapping, "THE European left has long treasured the myth that CIA agents snatch people off the streets and whisk them off to covert prisons around the world for harsh interrogation. Now, for the first time, America has admitted that at least part of this is true. For decades, the United States—and other countries—have used renditions to transport terrorist suspects from the country where they were captured to third countries where they can be questioned, held or brought to justice, Condoleezza Rice declared this week.…"

August 5, 2005 Bush administration tortureJurist condem Bush administrations torture memo's [8] 9,640 Google hits for that exact phrase]ACLU Lawsuits

Bush administration murder: Congressional Republicans have rejected calls for special hearings of the House and Senate intelligence committees to review the mounting evidence that kidnapping, torture and even murder of prisoners is standard practice for the CIA. Only one CIA agent, contract employee David Passaro, has been charged with a crime related to post-9/11 activities—in his case, the killing of a prisoner in Afghanistan who was beaten to death.

At least one other CIA officer is under investigation for a killing at Abu Ghraib prison in Iraq. The CIA station chief in Baghdad was removed from his post in December 2003, the New York Times reported February 28, at least in part because of the death of two prisoners who had been interrogated by agency employees. The same article in the Times revealed: “The agency has referred some cases to the Justice Department for a review of possible criminal charges under the federal torture law, which forbids extreme interrogation tactics, and under civil rights laws more commonly used in police brutality prosecutions.”

The two Iraqi deaths were those of Manadel al-Jamadi, who died in a shower room at Abu Ghraib prison on November 4, 2003, and Maj. Gen. Abed Hamed Mowhoush, who was beaten and asphyxiated. In both cases, military personnel have been charged with directly inflicting the fatal injuries—al-Jamadi was struck repeatedly on the head with rifle butts by Navy Seals, while Mowhoush was shoved into a sleeping bag head-first by Army intelligence officers and suffocated. CIA interrogators, however, were present and participating in both incidents.

In testimony before the Senate Intelligence Committee, CIA Director Porter Goss said that “a bunch of other cases,” in addition to Passaro’s, were under review by the CIA inspector general. He added, “What I can’t tell you is how many more might come in the door.

"As a centerpiece of this tougher strategy to pacify Iraq, Bush is contemplating the adoption of the brutal practices that were used to suppress leftist peasant uprisings in Central America in the ’80s. The Pentagon is “intensively debating” a new policy for Iraq called the “Salvador option,” Newsweek magazine reported on January 9.

The strategy is named after the Reagan-Bush administration’s “still-secret strategy” of supporting El Salvador’s right-wing security forces, which operated clandestine “death squads” to eliminate both leftist guerrillas and their civilian sympathizers, Newsweek reported. “Many U.S. conservatives consider the policy to have been a success—despite the deaths of innocent civilians,” Newsweek wrote.

The magazine also noted that a number of Bush administration officials were leading figures in the Central American operations of the ’80s, such as John Negroponte, who was then U.S. ambassador to Honduras and is now U.S. ambassador to Iraq.

Other current officials who played key roles in Central America include Elliott Abrams, who oversaw Central American policies at the State Department and who is now a Middle East adviser on Bush’s National Security Council staff, and Vice President Dick Cheney, who was a powerful defender of the Central American policies while a member of the House of Representatives.

The insurgencies in El Salvador and Guatemala were crushed through the slaughter of tens of thousands of civilians. In Guatemala, about 200,000 people perished, including what a truth commission later termed a genocide against Mayan Indians in the Guatemalan highlands. In El Salvador, about 70,000 died including massacres of whole villages, such as the slaughter carried out by a U.S.-trained battalion against hundreds of men, women and children in and around the town of El Mozote in 1981.

The Reagan-Bush strategy also had a domestic component, the so-called “perception management” operation. Administration propaganda justified U.S. actions in Central America by portraying the popular uprisings as an attempt by the Soviet Union to establish a beachhead in the Americas to threaten the U.S. southern border.

By employing the “Salvador option” in Iraq, the U.S. military would crank up the pain, especially in Sunni Muslim areas where resistance to the U.S. occupation of Iraq has been strongest. In effect, Bush would assign other Iraqi ethnic groups the job of leading the “death squad” campaign against the Sunnis.

“One Pentagon proposal would send Special Forces teams to advise, support and possibly train Iraqi squads, most likely hand-picked Kurdish Peshmerga fighters and Shiite militiamen, to target Sunni insurgents and their sympathizers, even across the border into Syria, according to military insiders familiar with discussions,” Newsweek reported.

Newsweek quoted one military source as saying, “The Sunni population is paying no price for the support it is giving to the terrorists. … From their point of view, it is cost-free. We have to change that equation.”

The conditions in Central America and Iraq are not parallel, however.

In Central America, powerful oligarchies had long surrounded themselves with ruthless security forces and armies. So, when uprisings swept across the region in the early ’80s, the Reagan-Bush administration had ready-made—though unsavory—allies who could do the dirty work with help from Washington.

A different dynamic exists in Iraq, because the Bush administration chose to disband rather than co-opt the Iraqi army. That left U.S. forces with few reliable local allies and put the onus for carrying out counterinsurgency operations on American soldiers who were unfamiliar with the land, the culture and the language.

Those problems, in turn, contributed to a series of counterproductive tactics, including the heavy-handed roundups of Iraqi suspects, the torturing of prisoners at Abu Ghraib and the killing of innocent civilians by jittery U.S. troops fearful of suicide bombings. The blame for these medieval tactics continues to climb the chain of command toward the Oval Office.

Bush finds himself facing a narrowing list of very tough choices. He could acknowledge his mistakes and seek international help in extricating U.S. forces from Iraq. But he abhors admitting errors, even small ones.

Instead Bush appears to be upping the ante, expanding the war by having Iraqi Kurds and Shiites kill Sunnis. This is a prescription for civil war or genocide." Bush administration death squads Bush claims the shia police need "more Human rights training"

Bush administration rapes, rapes in the military

I learned of women whose careers were completely destroyed by a military that could care less about what happens to its women in uniform. I learned of a military that rarely ever prosecutes those guilty of rape as the military is more interested in “protecting” its name than protecting the women in uniform. I learned that as a matter of policy, the military views rape as “an incident of military service.” I learned that the vast majority of those standing accused of rape are transferred to another base or are promoted and then transferred. I learned that these women are victimized by military men and then further victimized by the very military they serve and not enough seem to care. If they did this could be brought to an end.

There is a reason that high crimes and misdemeanors are impeachable offenses. The commander is responsible for the actions of his troops. In the case of the Bush administration the kidnapping, torture, murder, death squads, rape and unreasonable search and seizure are anything but isolated incidents and Abui garube and Gitmo are not the result of rogue units running amok but rather long standing policy that the president defends in his signing statement of the McCain torture act.Sea level 03:27, 31 January 2006 (UTC)

This is "good"?

This is not a good article, mostly because it is not well written, as ChrisL has explained well above. It is too long, excessively complicated, and poorly formatted. Word choice is particularly poor (latitudinarian stands out), severely limiting the article's potential audience. It frequently has the appearance of having been written by authors who do not speak English.

Not only is this not a good article, it desperately needs help. --Ajdz 20:42, 30 January 2006 (UTC)

Revert

ChrisL, your critique is entirely appropriate. Since it was listed as a "good article" 1/27, a number of contributors have made substantial changes without offering any discussion on the talk page. Many of these contributions, as demonstrated in the Rewrite section, are responsible for the "definitive slant" that you refer to. Sea level's 1/30 edits, for example, are all counterpoints that are appropriate for a commentary article, but not for an encyclopedic Wikipedia article.

The UED is a POV. This article is here to describe a POV, not to prove it or refute it. If the article's description is unbalanced, the thing to do is not to complicate it with all kinds of additional counterpoints, but rather to simplify it by getting rid of the parts that make it unbalanced instead of a neutral description. Those compelled to make edits need to bear this in mind. If you'd like to make such dramatic changes, please have the minimal respect for the previous editors to justify why changes needed to be made on the talk pages. Look, for example, at the lengthy notes I added after I fixed the "theory" vs. "doctine" problem. No such notes have appeared in the 45 edits made since. Just compare them - look at the enormous changes that have been made since, without any kind of consensus or even offered justification.

I reverted to the 1/27 "good article" edit. This is not to say that the edits made since weren't warranted - only that no justification was given. The edit which added information about the Printz case in "legal status", for example, was quite warranted IMHO, but no talk page justification was offered, so I got rid of it as well. Also, there are, as Ajdz points out, some real composition problems. This should not be so difficult, people. I'll stress again: The UED is a precise and well-defined legal concept. Even though it is the subject of controversy, the DEFINITION of UED is not. --Jdfawcett 01:57, 31 January 2006 (UTC)

The article says its a theory, user Jdfawcett says its a doctrine, it might even be considered a movement with economic, social, religious, and cultural implications as well as the political science and legal implications user Jdfawcett seems focused on. How can a doctrine, which is a body of theories, be well defined as a legal concept if there is more than one concept involved?

The definition of the UED is extremely contraversial. Sea level 14:44, 31 January 2006 (UTC)

Sea Level, you seem to be using "the definition of UED" to mean "everything that UED can be considered applicable to." I completely agree that UED can be understood to have economic, social, religious and cultural implications. I only maintain that these implications are not definitive. If you look up "Nazi" at Dictionary.com, the definition does not say "a party that subscribed to a reprehensible ideology that destroyed the lives of millions of Europeans during WWII" - it says "A member of the National Socialist German Workers' Party, founded in Germany in 1919 and brought to power in 1933 under Adolf Hitler." I'm happy to keep in commentary as long as it is labelled as such, but when we're talking about the definition of UED, the definition is extremely not controversial. --Jdfawcett 04:30, 1 February 2006 (UTC)

Een nazi is tegenwoordig een pejoratief gekleurde aanduiding voor iemand die de leer van het nationaal-socialisme aanhangt. Het nationaal-socialisme is de ideologie waaronder de Duitse dictatuur van 1933 tot 1945 werd uitgevoerd.

Despite above request to "please have the minimal respect for the previous editors to justify why changes needed to be made on the talk pages", WAS_4.250 reverted ([31 January 2006]) without any explanations. No edit wars here, people. SP:SR advises, "If you really can't stand something, revert once, with an edit summary something like '(rv) I disagree strongly, I'll explain why in talk.' and immediately take it to talk." I propose a voluntary moratorium on substantial edits and reverts without explanation. WAS_4.250, I reverted back to previous entry. My justification for doing so is describe above. If you'd like to make any changes, please offer some kind of succinct justification rather than simply reverting. --Jdfawcett 03:38, 31 January 2006 (UTC)

The reason for the developing edit war would appear to be a contraversy which some deny exists. Lets begin by seeing if we can just agree on what the different positions are and then work forward from there.Sea level 14:44, 31 January 2006 (UTC)

The reason for the developing war would appear to be a controversy that some are trying to invent. Since you're making the positive assertion of a controversy, I challenge you to find two legal textbooks with opposing definitions of UED. Not commentary pieces, but actual textbooks that people use in academic settings. There certainly is a controversy over what you call the "implications" of UED, specifically because implications are necessarily speculative and POV. But there is no controversy over the "definition" of UED.

it isn't a question of opposing definitions of UED but a failure to appreciate that there is a difference between the words "theory" and "Doctrine".

Black's Law Dictionary has several different definitions of theory.

theory of case. The facts on which the right of action is claimed to exist.

theory of Law. The legal premise, or set of Principals on which a case rests.

theory of pleading Doctrine. The pre code principle that one must prove his case as pleaded.

Blacks definition of Doctrine. A Rule, Principle, theory, or Tenet of the law, as the Doctrine of merger, the Doctrine of relation, etc;

Rule. An established standard, guide or regulation.

Principle. The source of authority or right.

Tenet. From the Lat.(tenuit) He holds, he held.

The difference between theory (premise) and Doctrine (established principle) is thus clear.Federal Street 12:02, 3 February 2006 (UTC)

I see no "definitions of theory" here - only definitions of specific theories. Also, note that UED is not a legal doctrine - it's a political doctrine, specifically a political doctrine based on a legal theory. You aren't going to find a political definition of "doctrine" in a law dictionary. Also, doesn't it strike you as pretty nonsensical to propose "a difference between the words 'theory' and 'Doctrine'" by citing a dictionary that defines doctrine as "A rule, principle, theory..."? I'm really going to have to stop responding to you if you don't start making sense. --Jdfawcett 18:11, 3 February 2006 (UTC)

You can always define anything by asking what is it that makes it what it is and what is it that makes it something else. A theory is a plan or scheme existing in the mind only. A theory is where you start. A Doctrine is where you end up. A theory offers facts or a legal premise as evidence that it has sufficient authority or standing or precedent to be included in a Doctrine, which is the whole body of theories which have become the whole set of rules, principles and tenets which can be considered the settled law.

You can think of it in terms of thesis, antithesis, synthesis, or use the common usage test. The term unitary executive theory is the more common usage 70,900 Google hits compared to 432 Google hits for unitary executive doctrine.

Incidentally, note that I haven't made any edits. I think there's substantial work towards consensus that needs to be done, and appreciate your participation on the talk page, Sea level. --Jdfawcett 04:30, 1 February 2006 (UTC)

What is "Departmental theory"?

What exactly is "Departmental theory"? This term is used repeatedly but without clear definition. I'm not sure that it is even a necessary term, but removing it would be part of a major rewrite/reorganization. --Ajdz 07:06, 31 January 2006 (UTC)

Departmental Theory refers to Madisons General Idea of the Separation of Powers.

"This idea of popular constitutionalism is sufficiently foreign to modern sensibilities to warrant at least brief explanation. Constitutional law, as originally understood, was different from ordinary law. It was law created directly by the people to regulate and restrain the government, as opposed to ordinary law, which is enacted by the government to regulate and restrain the people.

"A Constitution," wrote Judge William Nelson of Virginia in the 1790s, "is to the governors, or rather to the departments of government, what a law is to individuals." The object of constitutional law was to regulate public officials, who were thus in the position of ordinary citizens with respect to it: required to do their best to ascertain its meaning while going about the daily business of governing, but without ultimate authority. Instead, their actions and decisions were subject to direct supervision and correction by the superior authority of the people.

Just how "the people" exercised this authority changed over time. In the 18th century, when politics was mostly local and law enforcement depended on active community support and participation, popular resistance was informal and extralegal—consisting of everything from polite petitions for a repeal to outright obstruction of the law in the form of jury nullification and violent mob action. The creation of a national republic led to efforts to domesticate these sorts of activities. Whereas 18th-century constitutionalism had imagined a wholly independent people checking the government from without, republicanism made it possible to think of the people acting in and through the government, with the different branches responding differently to popular pressure depending on their structure and their relationship to the polity.

The resulting theory, which emerged clearly only in the 1790s, is known today as "departmentalism." Best articulated by Madison and Jefferson, the idea was ultimately straightforward.

Each branch of government—the legislature, the executive, and the judiciary—would be entitled to offer and act on its views of the Constitution when necessary in the course of ordinary business.

In most instances, the branches were expected to agree, and when disagreements arose they could be resolved by negotiation and accommodation. If this proved impossible, Kentucky Senator John Breckinridge explained, "[a] pertinacious adherence of both departments to their opinions, would soon bring the question to issue . . . whose construction of the law-making power should prevail"—by which Breckinridge meant that adherence by different branches to conflicting views would force the only body with final authority in such matters to decide—that is, the people themselves.

Readers familiar with the Federalist papers, and especially the famous fifty-first essay, will recognize in this reasoning an extension of Madison's general theory of separation of powers. Madison failed to emphasize courts in 1788 because judicial review was not yet a significant element in his thinking. The departmental theory folded courts into Madison's broader scheme, but without changing its basic commitment to democratic deliberation and popular authority. --Unsigned comment by User Sea level

Thanks, although the first sentence was sufficient. --Ajdz 16:32, 31 January 2006 (UTC)

Nescio's argumentum ad nazium

Nescio's argumentum ad nazium is unencyclopedic and has no place in this already excessively long article. Here's his chance to defend it (after his FOUR REVERSIONS in violation of the 3 revert rule)... --Ajdz 07:37, 31 January 2006 (UTC)

Thank you for that information, but you forgot to mention your unwillingness to discuss the matter. This is evident when we look here.-- Nomen Nescio 07:47, 31 January 2006 (UTC)

The above comment and your violation of the three revert rule speak for themselves. --Ajdz 07:48, 31 January 2006 (UTC)

You are being uncivil, by not mentioning that I warned you not to violate the 3RR rule as you were rapidly deleting content. As it stands let's keep a cool head.-- Nomen Nescio 07:53, 31 January 2006 (UTC)

Your defense of the argumentum ad nazium is the very definition of incivility. Your statements have no bearing on your violations. Please defend your use of the fallacy of argumentum ad nazium. --Ajdz 08:10, 31 January 2006 (UTC)

Unfortunately, you are in error, the term you are trying to use is argumentum ad nauseam.-- Nomen Nescio 10:19, 31 January 2006 (UTC)

No, it is not. [9] --Ajdz 16:28, 31 January 2006 (UTC)

No More Reverts

A quick note on my last small edit as it may be mis-interpreted. The sentence "Opponents note that such a stance, resembling the Führerprinzip" was changed to "Opponents note that such a stance, which they believe resemble the Führerprinzip".

I did this because the original sentence states "resembling the Führerprinzip" as a fact, and not as the opionion of the sentence subject "Opponents". Although the author may feel this is indeed a fact (and so may indeed have meant it as so), it is not clear from the sentence. If meant as a fact, then I take issue, but it would take a much longer discussion to pick this apart. If it instead relates to the subject "Opponents", then I respect the authors desire to equate UED with Führerprinzip, so long as it is attributed, and not stated as fact. In either case, this is the reason for my edit. ChrisL 15:15, 31 January 2006 (UTC)

I would strongly advocate no further reverts. Let's edit for a while and try to make this more readable, but while doing so at least attempt to preserve the ideas and comments of others, even those with whom you disagree, or think express a POV.

Why is this under my comment? I did not revert. I editted attribution, but left the reference.  ??? ChrisL 16:03, 31 January 2006 (UTC)

You said you made an edit and explained why. I agreed and said let's not revert, let's edit for awhile.Sea level 16:08, 31 January 2006 (UTC)

Why should it be objectionable to compare this theory to those which led to the collapse of the Weinmar Republic? On the face of it there seems much common ground based on the Platonic idea that in any Democracy the excessess of licentious Liberty will untimately require the few decent people remaining to call for the return of a strong leader to re-establish and then to preserve, protect and defend their values. Is it to be denied that this theory has strong philisophical overtones of those who believe in the guardianship of a strong patriarcal authority?Sea level 15:26, 31 January 2006 (UTC)

It is not objectionable to compare theories. However, that would take a lot more space and discussion that the article allows for.
(My issue here was the statement that they categorically "do" compare (as a fact). The OED proponents would not agree that UED compares to Führerprinzip "as a fact". The sentence stucture implies this, so to make it more clear that it is the belief of the "Opponents" (which is the subject of the sentence), an edit was made to that effect. Not removal, just clarification. FYI) ChrisL 16:08, 31 January 2006 (UTC)

You might also note "who" those "Opponents" are. The sole source in that irrelevant, ad nazium addition is from Lyndon LaRouche, who may very well be the most extreme, most fringe person in American politics (although to say that he is in American politics is a huge overstatement). A moment ago there were three "sources" but two have absolutely nothing to do with the ad nazium assertion in question. --Ajdz 17:26, 1 February 2006 (UTC)

If points such as what is departmental theory? and whether we are talking about a particular unitary executive theory or a unitary executive doctrine as a body of theories or even a unitary executive movement with wider implications than just political science or constitutional law or ordinary law remain to be defined then we can discuss them and agree on them here on the talk page and then find ways to word the article to include all the points which are germane.

I don't think either any unitary executive theory, or the whole body of unitary executive doctrine, refers to Führerprinzip at all unless we include what we are writing here, which may indeed someday be what people refer to as authoritative. Sea level 16:18, 31 January 2006 (UTC)

Führerprinzip is irrelevant and an example of argumentum ad nazium (about which there wasn't an article on wikipedia yet, so Nescio pretends it doesn't exist). It is truly sad that in an article as badly written as this one, people are so fanatically attached to badly written text. --Ajdz 16:26, 31 January 2006 (UTC)

This argumentum ad nazium appears to trace back to the University of Chicago and Leo Strauss. One of the more interesting points about the University of Chicago and the Strausian influence there is that c 1945, academics at the University of Chicago invented the academic discipline of Sociology.

Thats relevent here in that out of social psychology came ideas such as labeling theory and the concepts of deviance and control. Social psychology strives to know and improve the conditions of society in human terms through every means available including what conservatives call an activist court.

The idea seems to be that since constitutional law differes from ordinary law in being the means the people use to control government rather than the means the government uses to control people, its primary concern should be to check rather than reinforce the power of government.Sea level 18:05, 31 January 2006 (UTC)

That's exactly what's wrong with this article. People "trace" things that are distantly related and then say they cannot possibly be deleted, leading instead to a grotesquely bloated and unreadable article (at best). --Ajdz 19:21, 31 January 2006 (UTC)

It is too bad Ajdz keeps inserting allegations without substantiating his assertions. The Führerprinzip holds that the supreme leader answers to nobody, and that power is distributed down. The suggestion critics make is that under the Unitery Executive theory, the President has the same position: above the law. Although not identical, it clearly has similarities.

As to argumentum ad nazium, this is even more illogical than what I initially thought Ajdz meant. This is certainly not applicable to the reasoning I advanced. Contrary to his allegation I did not use the logical fallacy "since Hitler did it and Bush also, Bush is wrong/evil." Note: I do detect what might be considered an ad hominem attack.

Furthermore, as I already explained, correcting syntax and grammar is not the same as editing contents.-- Nomen Nescio 18:51, 31 January 2006 (UTC)

Please consider the possibility that you, Nescio, do not own wikipedia. You do not have absolute an infallible authority over what should be in these horribly written articles. Under your rationale, there is nothing in existence that would be out of place in this article. (See Wikipedia:Six degrees of Wikipedia)

Of course, "horribly written articles" can be corrected, as long as their meaning remains intact. Still, you evade discussion based upon arguments and in stead seem to favour innuendo. This is getting tedious, so I would respectfully like to ask you to refrain from what to some might be a cascade of personal attacks. Feel free to read about tigers-- Nomen Nescio 04:19, 1 February 2006 (UTC)

And you've found your own problem - your fanatical attachments, whether to bad grammar or POV "meaning". Many of the problems with your edits are related to your sick devotion to "meaning" that is frequently either objectively wrong or irrelevant. It is truly sad that a project like wikipedia has so much promise but its content is destroyed by fanatical editors. --Ajdz 06:07, 1 February 2006 (UTC)

If you think the mentioned views are incorrect you can explain that without resorting to questioning or ridiculing my person. My "fanatical attachments" are based upon my personal believe that everybody can have his/her say, as long as it is substantiated. On that departement you are failing. Start using arguments (it's called debate) in stead of ad hominem attacks. -- Nomen Nescio 07:57, 1 February 2006 (UTC).

You are correct, however, in that argumentum ad nazium is a combination of both guilt by association and ad hominem. --Ajdz 19:21, 31 January 2006 (UTC)

As I said, neither applies to the text you abhor or my fruitless attempts to start an exchange of rational arguments. -- Nomen Nescio 04:19, 1 February 2006 (UTC)

Can you explain how you think the philosophies of Führerprinzip and the unitary executive doctrine would be either made more, or less similar, by the inclusion into the unitary executive doctrine, of the unitary executive theory as proposed by Samuel Alito?

In either philosophy, some people see the advantages of a strong leader being able to cut through red tape and a deadlocked partisan congress, or legislature or parliment in order to get things done.

In either philosophy, some people sense the dangers of unchecked and unbalanced institutionalized authoritarianism and tyranny.

Where is the tipping point? Does it makes a difference if the unitary executive movement is backed by a call for institutionalized morality, and preaches a culture of fear in order to justify an increase in security through a reduction in human rights?

Is it germane to the discussion whether its one strong individual exersising strong leadership like those craggy visages assembled on Mt Rushmore, or the figurehead of a strong and corrupt croniest elite of extremist true believers in control of the military industrial complex, academia, the judiciary, the political system, the banks, the corporate establishment, the media, and a few corps of brownshirts and hitler youth that are willing to disrupt voting recounts.Sea level 15:54, 1 February 2006 (UTC)

Intelligible

This article has turned into a no longer intelligible part of Wikipedia. Although I would like to thank editors for their enthousiasm, the current participation has resulted in removal from the Good article list. Can we return to a more limited discussion on the subject? This is not meant to be a legal textbook. The way it was last month was at least easier to read.-- Nomen Nescio 07:57, 1 February 2006 (UTC)

This is an important and contraversial discussion and should not be limited to any one view.

Maybe it isn't quite as neat and tidy as you might prefer. So what?

Its a lot more intelligible to have a short accurate opening statement than the inaccurate statement that was there before.

Its more intelligible to talk about a unitary executive theory in the context of a collection of such theories gradually becoming accepted as a unitary executive doctrine with the present theory not yet accepted as a part of that doctrine, than to use the two terms interchangably.

I don't understand the apparent inconsistency of the notes formatting, can you explain what you are trying to do there? Sea level 15:10, 1 February 2006 (UTC)

You misunderstand. Please, keep all the views you want. But, try and reduce the size of the article. As it is its, the sheer bulk makes it impossible to read. How about this as idea for the presentation:

• Introduction: short and succinct description.
• Origins: describing what laws it is based upon and how it developed through time.
• Theory: definition and describing different aspects.

Departmental Theory: what is it, if possible limit to definition.

Aspects of Unitary Executive doctrine: what aspects are there?

• The legal status of the Unitary Executive doctrine: what are the legal consequences?
• Application by several U.S. administrations: More or less as it is now.
• See also: as it is
• Notes: incorporating the references and external links (these sections of course can then be deleted), although somebody has to insert them in the appropriate location.

This must be possible without writing an article 10 miles long. Sincerely -- Nomen Nescio 16:02, 1 February 2006 (UTC)

When was it "intelligible"? It never has been as long as I've known about it, and shows little promise with the rabid hostility to editing that is present here. --Ajdz 17:28, 1 February 2006 (UTC)

Please, do not continue you personal attacks under a new heading. This is getting out of hand. Debate this subject, but keep the subtle ad hominem attack out of this. If you feel the need to harbor a grudge, keep it limited to the relevant discussion.-- Nomen Nescio 19:30, 1 February 2006 (UTC)

Instead of whining about an observation on the indisputable hostility present here, how about answering the question. There are so many revisions that I would like to know at what point it was "intelligible" so I can see this wonder. --Ajdz 20:06, 1 February 2006 (UTC)

link spamming

There seems to be significant source/link spamming here. Large numbers of external links are added, often with no or questionable relevance. What's up with that? See, for example, Nescio's recent addition of sources to his ad nazium argument. Where does it end? When the article is 50% links to editorials? 75%? 90%? Should we just delete the whole link and redirect to Lyndon LaRouche?

The sources were deleted originally because, as I mentioned above (which of course was followed by reversion rather than discussion, a continuation of which will no doubt lead to Nescio again violating the 3 Revert Rule), they do not support to the assertion they are placed after. Even if they did, they would still present the significant problem of relevance only to the extreme fringe of the article. You guys need to work on making it readable, not representing the extreme fringe of politics.

Isn't there a wikipedia policy on relevance and link spam? --Ajdz 20:14, 1 February 2006 (UTC)

If you do not stop your personal attacks I will ask an admin to intervene. This already is beyond amusing.-- Nomen Nescio 20:27, 1 February 2006 (UTC)

I repeat, isn't there a wikipedia policy on relevance and link spam? --Ajdz 20:29, 1 February 2006 (UTC)

As I understand it the policy is to be bold but work toward consensus. How about we limit each section to 5-10 links and if more are needed start a new section with a new titleSea level 20:52, 1 February 2006 (UTC)

I agree the links should be reduced. However, Mr Ajdz has problems with certain parts of the article. To satisfy his fear of POV (clearly unwarranted since criticism as such is allowed in controversial articles) I provided a myriad of sources to proof the disputed edits are substantiated. If this editor can accept that although he has different views, these views exist also we can start by reducing the links. The links are merely to satisfy objectionists, but beyond that have no added value.-- Nomen Nescio 11:21, 2 February 2006 (UTC)

Absurd reverts

Please to not engage in absurd reverts like this one. The Nixon Administratin lasted from 1969 to 1974, making it impossible for Congress to have passed "the Sedition Act of 1798, the Sedition Act of 1918, and the Smith Act of 1940" during his tenure. Either rewrite and relocate to actually make sense or leave it alone.

From reviewing the new "source" it appears that the original irrelevant text was lifted from an article where it described Congressional abuses of power, making it terribly amusing that it was placed under an article about the executive branch in the first place. --Ajdz 20:27, 1 February 2006 (UTC)

I have had to restore my edit three times because Nescio will not discuss edits here as specifically requested. How do I contact an administrator to resolve this problem? --Ajdz 20:41, 1 February 2006 (UTC)

How about this. You each post one version here, on the discussion page, and then after people have commented, maybe there can be some compromise and agreement. Nescio seems to be looking for a short succinct outline. Why not add to what he proposes whatever you feel he has missed Sea level 20:48, 1 February 2006 (UTC)

I'm not sure that this has anything to do with an outline except that a 1940 law could not possibly have been passed during the Nixon Administration. Here's the original, to which Nescio added the source it was lifted from:

President Richard M. Nixon ordered unlawful break-ins, known today as Watergate, and wiretaps against those who opposed the Vietnam War, and Congress enacted the Sedition Act of 1798, the Sedition Act of 1918, and the Smith Act of 1940.^[10] He also tried to enjoin the publication of the Pentagon Papers. Ultimately, Nixon decided to step down in order to avoid impeachment proceedings.

Here's my revision, noting that acts passed by Congress in 1798, 1918, and 1940 were neither executive actions nor actions that took place during the 1969-1974:

President Richard M. Nixon ordered unlawful break-ins, known today as Watergate, and wiretaps against those who opposed the Vietnam War. He also tried to enjoin the publication of the Pentagon Papers. Ultimately, Nixon decided to step down in order to avoid impeachment proceedings.

The "source" from which sentences were lifted virtually verbatim, reads:

This was true when Abraham Lincoln suspended the writ of habeas corpus, Franklin D. Roosevelt ordered the internment of 120,000 individuals of Japanese descent, Richard M. Nixon ordered unlawful break-ins and wiretaps against those who opposed the Vietnam War, and Congress enacted the Sedition Act of 1798, the Sedition Act of 1918, and the Smith Act of 1940. We hope, of course, that presidents and Congress will act with restraint and wisdom. But we know that, in times of crisis, they frequently overreact to perceived danger, manipulate public opinion and needlessly sacrifice our liberties.

Fixing such a blatant error should not be this difficult. There may be a plagiarism issue here too, but I can't imagine a fix being allowed by the hostile editors here. But maybe I shouldn't care, it's like rearranging deck chairs on the Titanic. --Ajdz 21:47, 1 February 2006 (UTC)

Leave it as it is.-- Nomen Nescio 11:23, 2 February 2006 (UTC)

With all due respect, it is a little confusing to speak first of Nixon, then the earlier acts, then go back to Nixon. Its also reasonable to want to mention the earlier acts. Two or more sentences might work better than one run on sentence for clarity. Alternatively, if a quote says it well enough, why not use an embedded link and quote it? Sea level 12:38, 2 February 2006 (UTC)

It actually isn't even reasonable to mention the acts because they are acts of CONGRESS described as overreaching by CONGRESS, and this is not an article on the Unitary CONGRESS Theory. Nescio's response, however, is exactly what keeps this article from improving. --Ajdz 18:45, 2 February 2006 (UTC)

Cleaned up talk

I cleaned up this talk page, deleting my own sections that have been adequately discussed, and deleting others that were either out of date or resolved. If you were a party to these discussions and want them to continue feel free to edit them back in (don't just revert), but otherwise let's try to clean up after ourselves.

There's a real problem of basic terminological competence in this article, and without endorsing some cult of the expert I'll simply observe that a lot of the problems in this article don't exist in the academic and professional communities where terminology has been rigorously defined and established.

In his 1/31 edits, for example, Sea level "attempt[s] to combine the language of the warring factions". One way that he does this is to edit this:

the unitary executive doctrine (UED) (differentiate from unitary government) To say this:

In unitary government the UET which Samuel Alito has advocated to the Reagan and Bush administrations should be included in the UED, describes the relationships between the branches of government in a way which emphasizes the unitary authority of the President over all parts of the executive branch.

The standard form for a wikipedia article is to include the article title in the first sentence. This isn't an article about Unitary Executive Doctrine (UED). Feel Free to start one

Let's look at the semantic drift that has taken place here with the term "unitary government". The term "unitary executive" first appears in this article when Simon Dodd wrote

I'm happy to leave off the part about unitary government, I didn't put it there and I think the article is clear without it, I do think its helpful to make it clear that a unitary executive theory is one theory which may or may not be or even become a part of the unitary executive doctrine.

The Unitary Executive theory (UET) which Samuel Alito has advocated to the Reagan and Bush administrations should be included in the UED, describes the relationships between the branches of government in a way which emphasizes the unitary authority of the President over all parts of the executive branch.

"In American political and legal discourse, the unitary executive theory -- which should not be confused with concepts of unitary government -- involves two facets..." [11] Here "unitary government" is introduced not because it is at all relevant to discussions of "unitary executive theory", but precisely because it is irrelevant and should not be confused with what is relevant.

I'm fine with that

Further, it is notable that the distinction is not made in reaction to any controversy surrounding "unitary government" and its relevance - rather, it was simply a good piece of proactive editing Dodd introduced to avoid any possible confusion. Later, MagnaMopus shortened the phrasing to "the unitary executive theory (UET, comp. unitary government)" 12 and then to its most recent form preceding Sea level's edit, "the unitary executive theory (UET) (differentiate from unitary government)" 13.

If you want to be clear then what you really want to differentiate is unitary executive theory UET from unitary executive doctrine UED.

Sea level's efforts to "combine the language of the warring factions" is odd to say the least, then, when he changes MagnaMopus's venerable phrasing which survived 166 edits, including the multiple edit wars, completely unchallenged. This is not an instance of Sea level establishing common ground or giving balanced attention to "warring" POVs because there are, as the history indicates, no warring factions to be found on this matter. This is instead an instance of Sea level either being either uninformed by or simply disregarding historical usage, both within Wikipedia and beyond. His change is not trivial. "Unitary government" is no longer explicitely distinguished from "unitary executive" - instead,

In unitary government proposing that the UET which Samuel Alito has advocated to the Reagan and Bush administrations should be included in the UED, it is intended and allowed by the constitution that the proposal be acted on by the executive branch and that there be consequences.

Unitary governments hold centralized power over subordinate units. It can be argued that in the United States the constitution provides for separation of powers with checks and balances.

What happens to separation of powers and checks and balances when one party controls all three branches?

Is what happens in that situation when someone advocates a unitary executive the same as what happens otherwise?

The answer would appear to be no. What happens then is that we end up with a unitary government in the sense of a centralized power controlling subordinate units because the checks and balances can no longer be applied.

I'm happy to leave it out and look at the general case rather than the specific situation we have now, but it seems that some reference to what happens with a situation such as what we have now would not be totally inappropriate.

This sentence is almost completely unreadable. The ambiguous subject "it" only appears 24 words into the sentence. The verb "is intended" is passive. Significantly, the copular "proposing" asserts a descriptive relationship between "unitary government" and "UET", presumably in the interest of "combining language", where no such relationship was ever established or even proposed.

The language is pretty simple actually. The subject is the UET. It follows the clause "in unitary government" which is a specific reference to a state of affairs that exists today, but would be expected to generally not be the case.

It is grammatically impossible to determine what precisely the "unitary government" of this sentence is "in" (the opening clause of the sentence is an enormous dangling modifier composed of no less than FOUR! prepositional phrases), and neither can I conceive of how unitary government might possible be "in" anything that has to do with our discussion of UED.

There is an introductory prepositional clause, a noun clause, a verbal predicate clause, and an adverbial clause. That shouldn't be beyond the pale of language for anyone who has ever read a legal document.

Why is unitary government specifically invoked, as opposed to federal government?

As I mentioned above its the specific case that we are dealing with at present. I have no objections to looking at the general case so long as we can follow up with what Alito is proposing at some point.

Does Sea level understand that the United States is a federal government?

I understand it to be a Federal Republic with a Constitution and constitutional law which allows We the People to control the government.

Does he understand that the only thing "unitary executive" and "unitary government" share in common is their use of the word "unitary", and that the doctrine of the Unitary Executive has historically emerged from federalism, as indicated in the article's later observation that UED "is associated with conservative legal thought and the Federalist Society"?

I understand any given unitary executive theory to be different from the entire body of unitary exexutive theories included in the the term unitary executive doctrine.

The difference is that a given unitary executive theory may or may not be settled law while a unitary executive doctrine generally would be taken as settled law.

I understand unitary government to refer to a particular situation where a centralized power has total control over subordinate units.

IMHO, no. IMHO, Sea level's attempts to "negotiate" his own interpretation into the article precedes any kind of acquaintance with and committment to conventional usage, and if "compromising" his viewpoint into the article means changing the relevance and even meaning of other ideas, he does it. "Unitary government" is only one example of this -

You seem not to like the idea that we are entering a period where a strong attempt is being made to substitute centralized power and unitary government for the separation of powers and the checks and balances we are used to.

I'll allow its arguable as to whether it has happened already or not. Assuming Congress remains in Republican hands through 2006 into 2008 it will probably be too late to reverse the process. Right now its really hard to predict whether the Republican party which is in total control at this moment can sustain that control and if so for how long.

another is his bizarre formulation that "the unitary executive theory (UET) is proposed to become a part of the unitary executive doctrine (UED)."

That comes from Departmental Theory, see above. Its anything but bizarre, its the mainstream thinking on this issue. A theory is one idea and a doctrine is a collection of theories on a common theme which have become a body of thought.

This is patent nonsense. There's no actual conceptual relationship being articulate here - just an opaque spatial metaphor, "part of". And what have we accomplished in terms of "compromise" or "clarification" by simply positioning two disputed terms in some kind of relationship? The term UED was introduced as a correction to the misnomer UET, not as a distinct concept - the two cannot be placed into some kind of "compromise relationship" without changing their definitions. Changing the definitions of terms is not an appropriate way to write an article.

A theory is one idea and a doctrine is a collection of theories on a common theme which have become a body of thought.

As I proposed in the beginning, the problem here is not one of POV - it's one of basic terminological competence. Knowledge - the sort of knowledge you get by actually studying UED, not simply reading a few articles or listening to talk radio - is taking a back seat to both argument and compromise.

We all benefit when we read and study more.

When I started working on this article I thought that the editors might benefit from my education on UED - but the problem here isn't a few experts trying to impose their authority upon dissent. The problem here is too many people claiming expertise that they don't actually have. In an attempt to remedy the edit war, I'm going to step down, even though I'm likely much more qualified (and certainly much more fluent in English) than some of my antagonists. I hope those with less competence will have the decency to follow suit. --Jdfawcett 22:23, 1 February 2006 (UTC)

Retrieved from "http://en.wikipedia.org/wiki/Talk:Unitary_Executive_theory"

Wikipedia may not always take the same postions you are used to over at the Federalist Society, but it does have a nice dialectic aspect of askking and answering to it.Sea level 23:44, 1 February 2006 (UTC)

Although a clean-up is always a good think it would be better to archive the page in stead of deleting. For future reference it is easier should anybody would like to read the now deleted discussions.-- Nomen Nescio 11:37, 2 February 2006 (UTC)

Competence

For the sake of readability, please add any comments to the end of this section rather than interspersing with counterpoints.

There's a real problem of basic terminological competence in this article, and without endorsing some cult of the expert I'll simply observe that a lot of the problems in this article don't exist in the academic and professional communities where terminology has been rigorously defined and established.

In his 1/31 edits, for example, Sea level "attempt[s] to combine the language of the warring factions". One way that he does this is to edit this:

the unitary executive doctrine (UED) (differentiate from unitary government)

To say this:

In unitary government the UET which Samuel Alito has advocated to the Reagan and Bush administrations should be included in the UED, describes the relationships between the branches of government in a way which emphasizes the unitary authority of the President over all parts of the executive branch.

Let's look at the semantic drift that has taken place here with the term "unitary government". The term "unitary executive" first appears in this article when Simon Dodd wrote:

"In American political and legal discourse, the unitary executive theory -- which should not be confused with concepts of unitary government -- involves two facets..." [11]

Here "unitary government" is introduced not because it is at all relevant to discussions of "unitary executive theory", but precisely because it is irrelevant and should not be confused with what is relevant. Further, it is notable that the distinction is not made in reaction to any controversy surrounding "unitary government" and its relevance - rather, it was simply a good piece of proactive editing Dodd introduced to avoid any possible confusion. Later, MagnaMopus shortened the phrasing to "the unitary executive theory (UET, comp. unitary government)" [[12]] and then to its most recent form preceding Sea level's edit, "the unitary executive theory (UET) (differentiate from unitary government)" [[13]].

Sea level's efforts to "combine the language of the warring factions" is odd to say the least, then, when he changes MagnaMopus's venerable phrasing which survived 166 edits, including the multiple edit wars, completely unchallenged. This is not an instance of Sea level establishing common ground or giving balanced attention to "warring" POVs because there are, as the history indicates, no warring factions to be found on this matter. This is instead an instance of Sea level either being either uninformed by or simply disregarding historical usage, both within Wikipedia and beyond. His change is not trivial. "Unitary government" is no longer explicitely distinguished from "unitary executive" - instead,

In unitary government proposing that the UET which Samuel Alito has advocated to the Reagan and Bush administrations should be included in the UED, it is intended and allowed by the constitution that the proposal be acted on by the executive branch and that there be consequences.

This sentence is almost completely unreadable. The ambiguous subject "it" only appears 24 words into the sentence. The verb "is intended" is passive. Significantly, the copular "proposing" asserts a descriptive relationship between "unitary government" and "UET", presumably in the interest of "combining language", where no such relationship was ever established or even proposed. It is grammatically impossible to determine what precisely the "unitary government" of this sentence is "in" (the opening clause of the sentence is an enormous dangling modifier composed of no less than FOUR! prepositional phrases), and neither can I conceive of how unitary government might possible be "in" anything that has to do with our discussion of UED. Why is unitary government specifically invoked, as opposed to federal government? Does Sea level understand that the United States is a federal government? Does he understand that the only thing "unitary executive" and "unitary government" share in common is their use of the word "unitary", and that the doctrine of the Unitary Executive has historically emerged from federalism, as indicated in the article's later observation that UED "is associated with conservative legal thought and the Federalist Society"?

IMHO, no. IMHO, Sea level's attempts to "negotiate" his own interpretation into the article precedes any kind of acquaintance with and committment to conventional usage, and if "compromising" his viewpoint into the article means changing the relevance and even meaning of other ideas, he does it. "Unitary government" is only one example of this - another is his bizarre formulation that "the unitary executive theory (UET) is proposed to become a part of the unitary executive doctrine (UED)." This is patent nonsense. There's no actual conceptual relationship being articulated here - just an opaque spatial metaphor, "part of". And what have we accomplished in terms of "compromise" or "clarification" by simply positioning two disputed terms in some kind of relationship? The term UED was introduced as a correction to the misnomer UET, not as a distinct concept - the two cannot be placed into some kind of "compromise relationship" without changing their definitions. Changing the definitions of terms is not an appropriate way to write an article.

As I proposed in the beginning, the problem here is not one of POV - it's one of basic terminological competence. Knowledge - the sort of knowledge you get by actually studying UED, not simply reading a few articles or listening to talk radio - is taking a back seat to both argument and compromise. When I started working on this article I thought that the editors might benefit from my education on UED - but the problem here isn't a few experts trying to impose their authority upon dissent. The problem here is too many people claiming expertise that they don't actually have. In an attempt to remedy the edit war, I'm going to step down, even though I'm likely much more qualified (and certainly much more fluent in English) than some of my antagonists. I hope those with less competence will have the decency to follow suit.

Ajdz notes that LaRouche seems to have significantly infiltrated this discussion, which I think pretty plausible given a) the sudden preponderance of pseudo-Platonic argument, b) the conversations about "Führerprinzip", and c) the fact that UED is LaRouche's new fetish conspiracy, as amply demonstrated in his recent pamphlets. If you're down with LaRouche, I respect your right to participate in this article, but do recognize that a proportionately representative article on UED will necessarily give much more attention to the "mainstream" conceptions of UED than LaRouche's. --Jdfawcett 22:47, 1 February 2006 (UTC)

---

I'm more impressed by civility and respect than by ego, disdain for others and a false sense that one's opponents are "out of the mainstream".

I find the Platonic argument that there is a guardian elite which must control and protect the mob, unitary government, authoritarianism, tyranny, "Führerprinzip", and the concept of UED as arrived at through the regular attrition of separation of powers by the imposition of one unitary executive theory after another, no stranger than the ideas of Lyndon LaRouche and would encourage all of those to be considered fair game for discussion.Sea level 23:55, 1 February 2006 (UTC)

The entire argument surrounding the "Führerprinzip" and its being applicable or not is trivial. Can we not first determine what UED or UET holds as I suggested earlier. I would think it is logical and more important to define what we are talking about before even starting a debate on the controversy.-- Nomen Nescio 11:33, 2 February 2006 (UTC)

Can somebody please provide a definition of the theory and/or doctrine? If possible in less than 30 words.-- Nomen Nescio 15:28, 2 February 2006 (UTC)

Conventional usage ... conventional attitudes and values.

Viewpoint... not a POV the Federalist Society would subscribe to

changing the relevance ... I wish I had thought of that

Bizarre formulation ...not a linear thinker ...people should realize that if they think in more than four dimensions at once it gets confusing

no actual conceptual relationship being articulated here ...don't just lay things out for us, bolt them together

changing the definition of terms is inappropriate ... it's inappropriate to think of something in a way that is described on a page of the textbook we haven't turned to yet.

terminological competence...bush speak for hasn't drunk the same koolaid as the rest of us.

benefit from my education...

I'm likely much more qualified...

those with less competence... -- originally added by Sea level, unsigned

Sea level, per the opening tag I moved your comments out of the middle of my statement and into the end. And in response to them, I can only respond: Yes! I am claiming expertise. And I'm even claiming expertise that you don't have!

In my business we define expertise, or experience, as having already made "all those" mistakes before. If you haven't made any mistakes you don't have any experience. Tell us about the mistakes that you think give you your expertise.Federal Street 00:37, 3 February 2006 (UTC)

I certainly hope your business isn't firefighting or plastic surgery - that would make experience pretty hard to come by! But to answer your question, back in the day there was that one time when I was like "Unitary Executive is a theory!" and my colleague was like, "No, it's really obviously a doctrine!" and we read up on it and it turns out that I had been really confused. True story. Where are you going with this? --Jdfawcett 04:02, 3 February 2006 (UTC)

Everybody makes mistakes, thats why pencils (except for golf pencils) have erasers. Some people (a few golfers who like to play gold at St. Andrews and Burning Tree) have a lot of difficulty admitting it when they make mistakes. From their perspective they and all their friends are doing a heck of job. Federal Street 11:39, 3 February 2006 (UTC)

This is true my friend! For example, if you look at the history you'll notice that I originally signed this comment without signing in! I had a hard time admitting this to myself. --Jdfawcett 15:13, 3 February 2006 (UTC)

But the danger of such appeals to authority comes when they're the basis of our argument, not the conclusion. On the contrary, I spend the above statement expositing how you've demonstrated a complete lack of knowledge and competence to speak on this issue; let the readers and editors respond to this evidence as they will. Your indictment of me as claiming some kind of authority seems pretty powerless since I have also signaled my intention not to edit the article anymore.

As for your allegations of "bush speak" and what I am "used to over at the Federalist Society", you realize, of course, that this is just the other side of the ad hominem coin as my supposedappeals to authority. Would you like to back up this indictment of me with some kind of evidence, or are you going to deduce it using Platonic reasoning? Either way, good luck - you're going to have a hard time linking me to the Beast Man and his Satanic conspiracies. --Jdfawcett 16:55, 2 February 2006 (UTC)

When some either don't understand that there is a difference between a theory and a doctrine, or won't admit it, seems hard to reconcile with claims of superior competence. To so identify with certain terminology, that a person would consider a reference to the terminology a reference to them is similarly enlightening.Federal Street 11:39, 3 February 2006 (UTC)

Your abstract phrasing renders both the subject and point of your comments completely ambiguous. Instead of communicating on a wikipedia talk page by positing general axioms and rhetorical positions, lets enter into a discussion where we address each other and make direct responses. I, at least, have no interest in deducing the relevance of your abstractions to this specific conversation. --Jdfawcett 15:31, 3 February 2006 (UTC)

Theory and doctrine

This is an article about unitary executive theory not unitary executive doctrine. Its not hard to draw the difference, The introductory statement does that, it just seems hard to get some people to agree to stay on topic. Maybe they would prefer to discuss this on a Unitary Executive doctrine page where they would be on a common footing with things like the Monroe Doctrine the Bush Doctrine, the Kirkpatrick Doctrine, the Truman Doctrine, the Eisenhower Doctrineand the Brezhnev Doctrine

Theory "The word ‘theory’ derives from the Greek ‘theorein’, which means ‘to look at’. According to some sources, it was used frequently in terms of ‘looking at’ a theatre stage, which may explain why sometimes the word ‘theory’ is used as something provisional or not completely resembling real. The term ‘theoria’ (a noun) was already used by the scholars of ancient Greeks.

Doctrine, from Latin doctrina, (compare doctor), means "a body of teachings" or "instructions", taught principles or positions, as the body of teachings in a branch of knowledge or belief system. The Greek analogy is the etymology of catechism. It can also refer to a principle of settled common law such as the Doctrine of Self-defenseSea level 12:16, 2 February 2006 (UTC)

Can somebody please provide a definition of the theory and/or doctrine? If possible in less than 30 words.-- Nomen Nescio 15:28, 2 February 2006 (UTC)

Nomen Nescio, I thought that you and I were making some progress when we talked about this earlier when I proposed the article be retitled Unitary Executive doctrine. I'll try again, and maybe we can reach some consensus on this.

Unitary Executive doctrine: The political principle, predicated upon the departmental and coordinate construction theories of constitutional interpretation, to which a number of US policy initiatives historically appeal.

(The rest is elaboration.)

Unitary Executive theory: Sometimes used synonymously with UED, but doctrine is the more precise and accurate term.

Jennifer Van Bergen's discussion of UED should be helpful for all of us here. JVB is extremely critical of UED: she argues "that the doctrine violates basic tenets of our system of checks and balances, quietly crossing longstanding legal and moral boundaries that are essential to a democratic society." Yet it is notable that in simply defining what UED is, she shares common ground with Christopher Yoo, one of its chief advocates. Read "What Does the Administration Mean When It Refers to the 'Unitary Executive'?" (you'll have to scroll down a little). --Jdfawcett 17:47, 3 February 2006 (UTC)

I will allow that is one great article. The point you make about sharing ground is a slippery slope. Jennifer Van Bergen begins with "unilateral authority", "unilateral, and unchecked", "unilateral executive power", "unitary executive", and gradually builds up through a whole series of theories to a body of thought called a doctrine. In particular her citing of Chahha was illuminating.

"a code word for a doctrine that favors nearly "unlimited executive power". Bush has used the doctrine in his signing statements to quietly expand presidential authority."

"the meaning of the unitary executive doctrine within a democratic government that respects the separation of powers"

"I will also consider what the President and his legal advisers mean by applying the unitary executive doctrine. And I will argue that the doctrine violates basic tenets of our system of checks and balances, quietly crossing longstanding legal and moral boundaries that are essential to a democratic society."

"You can really see why Jeniffer chose Chadra, its essentially a list of reasons why the unitary executive doesn't work.

Chadha

"Congress is the proper party to defend the validity of a statute when a Government agency, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is unconstitutional"

"8. The congressional veto provision in 244(c)(2) is unconstitutional. Pp. 944-959.

(a) The prescription for legislative action in Art. I, 1 - requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives - and 7 - requiring every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House - represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 944-951.'

"By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. "

"Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. Since the precise terms of those familiar provisions are critical to the resolution of these cases, we set them out verbatim. Article I provides:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Art. I, 1. (Emphasis added.)

"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States . . . ." Art. I, 7, cl. 2. (Emphasis added.)

"Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) [462 U.S. 919, 946] shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." Art. I, 7, cl. 3. (Emphasis added.) "

"The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted."

"The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review."

"The Framers perceived that "[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). "

Bowswer

"We noted recently that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha, 462 U.S. 919, 951 (1983). The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Justice Jackson's words echo the famous warning of Montesquieu, [478 U.S. 714, 722] quoted by James Madison in The Federalist No. 47, that "`there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates' . . . ." The Federalist No. 47, p. 325 (J. Cooke ed. 1961). "

I am not restarting that discussion. What's more your ideas sound good to me. Nevertheless, the article has evolved into sheer chaos and bulk. The main reason for asking a definition is to try and get other editors to participate in finding a succinct way of telling the casual reader what this concept is all about. I have suggested an outline of what I think would make a good start in rewriting the article. Sadly, nobody feels the need to react and make suggestions too. As it is this article remains just too extensive and I would once again like to suggest to just define the principle, explain history and legal consequences. All this in a less elaborate way. To all editors, feel free to help in this attempt to make this article intelligble once more.-- Nomen Nescio 18:29, 3 February 2006 (UTC)

Article has lots of talk, says nothing

I'm not a lawyer, nor do I play one on TV. It's too bad that this article is written only for those who live and die by minutiae. I read this article and still have no idea what "Unitary Executive Theory" might or might not be. The introductory portion might as well not exist, as it talks around the concept but never bothers to give the brief definition that conventionally begins serious encyclopedia articles. This article is merely a set of technical notes and is not suitable for inclusion in something that purports to be an encyclopedia. I dare not attempt to revise it, since I would have no idea, after reading the article, what said article is supposed to be saying in the first place. Dogface 13:26, 2 February 2006 (UTC)

Unitary = one Executive = boss 69.164.66.203 00:28, 3 February 2006 (UTC)

Unitary Executive theory = The theory that there is only one bossFederal Street 00:31, 3 February 2006 (UTC)

Federal Street, proposing that kind of pat and imprecise definition isn't helping this discussion. --Jdfawcett 17:51, 3 February 2006 (UTC)

I have to agree with dogface and nesco. As I said before, I still could not send my kids to this page and expect them to be able to give even a simple definition of what UET is. Too bad really. ChrisL 16:54, 3 February 2006 (UTC)

The Legal status of Samuel Alito's unitary executive theory

Would it be acceptable to the honourable editors, to first find compromise on what we already have before adding new and extensive paragraphs? At the moment we are working for ourselves in stead of making it a team effort.-- Nomen Nescio 15:51, 3 February 2006 (UTC)