The Obama administration is discovering the Unitary Executive theory:
Turning to how terror suspects are tried, Holder said he still believes the “decision as to how people get prosecuted, where they get prosecuted, is an executive branch function. Even if those suspects are being held now at Guantanamo Bay. Holder said Congress should not be interfering with that.
“It’s — from my perspective — a constitutional issue,” he said.
This was bound to happen as soon as a Democrat was in office. Not that anyone will admit changing their position; objection to the unitary executive theory was always based on misstating what it is. The actual theory, which says that the Constitution vests the executive power solely in the president, can’t really be argued, since the Constitution reads:
The executive Power shall be vested in a President of the United States of America.
Those who attacked the unitary executive theory made it out to be something it never was: the idea that the president somehow holds the legislative and judicial powers as well.
UPDATE: It’s not completely clear from the article, but it appears that Holder is alluding to Congress’s legislation barring the transfer of any prisoners from Guantanamo Bay to the United States. That’s interesting, because Holder is actually going beyond the real unitary executive theory to something close to its liberal parody: he is claiming for the executive branch powers that belong to the legislative branch.
The processes of the criminal justice system and the Uniform Code of Military Justice (which include “where” and “how” people are prosecuted) are established by law — that is, by the legislative branch. But Holder seems to be claiming the authority to establish those processes for the executive branch.