Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

62 this is the definition give by one of its

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62. This is the definition give by one of its proponents Samuel Alito, recently appointed to the Supreme Court, in “Presidential Oversight and the Administrative State,” reprinted in Engage 11, 12 (November, 2001). <http://en.wikipedia.org/wiki/Unitary_Executive_theory> 63. For a forceful defense of the expansive version of unitary executive theory see: John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of Chicago Press, 2005) and his more recent, War by Other Means: An Insider’s Account of the War on Terror (New York: Atlantic Monthly Press, 2006). 64. Christopher Kelley, The Unitary Executive and the Presidential Signing Statement , Miami 281
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become commonplace only in very recent decades, they have a long pedigree, stretching back to President Monroe. Over the decades, they have served various purposes, the most non-controversial being to indicate what the expected effects of the law will be for the affected parties and how departments and agencies are to interpret the law’s provisions. 65 Another, highly controversial us of these statements is that of setting forth what applications of the law, in the president’s opinion, would violate the Constitution and/or what provisions of the law in his view are unconstitutional. 66 Such statements are understandably controversial for at least two reasons. First, the president by marking out what he determines to be unconstitutional provisions of a law, thereby signifying that he will selectively apply the law, is in effect exercising an item veto, i.e., nullifying portions of the law. Critics of this process point out that an item veto is not provided for in the Constitution and that if a measure contains unconstitutional provisions, the only constitutional recourse is for the president to veto the entire bill. Second, questions and controversy surround the extent and character of the president’s inherent or implied powers. It is apparent that the wider the executive’s conception of his powers, the more likely will his signing statements limit the reach of Congress, particularly in areas concerned with national security, the employment of the military, or the accountability of executive departments to Congress More generally, a president who declares that he will apply a law in a manner “consistent with the Constitution” is, in effect, free to fuse his understanding of the Constitution, including his conception of presidential authority, into the law thereby nullifying specific provisions of the law or limiting its application. 3.3. The President: Prerogative and Federative Powers John Locke’s conception of the federative and prerogative powers forms a convenient backdrop for understanding perhaps the most complex and controversial dimensions of the American division of powers. The federative University (Ohio), Ph.D. dissertation (2003). Available at <OhioLINK ETD: Kelley, Christopher> See also: Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (Lawrence: University of Kansas Press, 2002).
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