The Wonk Room

Nominee To Be EPA’s Top Lawyer Embraces ‘Unitary Executive’ Doctrine

In his Senate Environment and Public Works nomination hearing today, David Hill, the Bush nominee for the General Counsel of the Environmental Protection Agency (EPA), was asked by Sen. Barbara Boxer (D-CA) what the EPA Administrator should do “if the President of the United States tells him to do something illegal”:

I believe that the courts have held, Senator, that within the unitary executive the administrator and the EPA, just as with all executive agencies, work for the President and are responsible to the President of the United States.

The “unitary executive” theory is a formerly obscure, right-wing legal argument that asserts “all executive authority must be in the President’s hands, without exception.” In other words, the president has practically unlimited executive power, and no actions of the courts nor the Congress can override it. Supreme Court Justice Samuel Alito is a champion of the doctrine.

Bush has used the theory to justify at least 145 signing statements — including those that assert his right to ignore laws restricting on torture, open mail without a warrant, and block Congressional oversight of military spending.

Boxer’s question was not purely hypothetical. The current administrator of the EPA, Stephen L. Johnson, has overruled his staff’s scientific recommendations on global warming regulations and ozone limits — both apparently at the behest of the White House. Yesterday, Rep. Henry Waxman (D-CA) issued a subpoena to compel the EPA to turn over documents involving communications with the White House.

If Hill’s nomination is confirmed, the transformation of the Environmental Protection Agency to the Bush Protection Agency will be complete.

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Transcript:

BOXER: Can you please answer my question? I beg you. You’re a very smart man. I’m not trying to trap you. I’m simply trying to get an answer.

Do you believe it is appropriate for the OMB or other White House staff to overrrule the scientific judgment of the EPA Administrator when Congress has explicitly delegated that decision to the administrator?

I’m not talking about consultation having lunch, chit-chatting, having coffee, and exchanging ideas. I’m talking about overruling a decision.

HILL: Ultimately the administrator works for the President of the United States.

BOXER: Doesn’t the Administrator have to carry out the Clean Air Act? What if the President of the United States tells him to do something illegal? You’re saying he has to do that?

HILL: I believe that the courts have held, Senator, that within the unitary executive the administrator and the EPA, just as with all executive agencies, work for the President and are responsible to the President of the United States.