Presidential Authority / Fresh Air

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Reporter Charlie Savage was on Fresh Air today, talking about Executive power.

The main point was that Bush is working to expand Executive power. He -- and his interviewer, Terri Gross -- wrong. They started off talking about the "Unitary Executive" theory, which Savage said was "revisionist." He got the definition of the UT theory correct (one of the few who does), which makes it even more puzzling how he could think it is revisionist.

The UT theory says simply that all executive power belongs to the President. Which is precisely what the Constitution says: "The executive power shall be vested in a President of the United States of America." No one else is granted any part of that executive authority. THE -- which is a synonym for ALL -- executive power is the President's.

And this is not a new "theory." It's been pushed by Presidents at least as far back as Jefferson and Madison. It's what the Constitution says, and means.

And then Savage asserts that the law required Cheney to fork over his Energy Task Force documents. This is, at best, an unsupported claim, and the evidence weighs against it. There's a law called the Federal Advisory Committee Act, which is what this whole case is basically about, and it exempts certain types of meetings from disclosure requirements. In the brief from Judicial Watch and the Sierra Club, suing Cheney to get the documents, they even concede the point:

... FACA does not apply to groups "composed wholly" of federal officials ... that provision clearly exempts any group of federal officials who conduct "episodic meetings" with outside parties. The exception does not, however, allow the government to avoid FACA by assigning a label of "non-member" to a non-federal party who "regularly attends and fully participates in [committee] meetings as if he were a 'member.'"

The question, then, is whether those non-officials, such as the VP of Exxon Mobil and Ken Lay, were, in fact, regular attendees who fully participated in meetings as if they were members. And there's no evidence supporting that: indeed, what we do know supports the notion that these people were visitors who came to a meeting once or twice simply to give their input.

There is not only no evidence that the law required Cheney to turn over those documents, but the evidence we do have weighs strongly against it.

Charlie Savage did say some true and interesting things, but he got a lot wrong, too. He views Bush as "expanding" Presidential power when, in fact, Bush has been asserting what the Constitution says, in his opinion, Presidential power is, and always has been, dating back hundreds of years. And most of the time, I agree with Bush on that, because most of the time, he has very clear Constitutional and historical backing for it.

Savage has it backward: Bush isn't trying to expand Presidential authority, but his opponents are trying to reign it in. Savage won a Pulitzer for his work on this subject, but I sure wouldn't have voted to award him.

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