DOCSLIB.ORG

The Role of Whistleblowing Legislation in the Regulatory Governance of Markets and in National Security

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Role of Whistleblowing Legislation in the Regulatory Governance of Markets and in National Security Dialectics of Transparency and Secrecy in the Information Age: The Role of Whistleblowing Legislation in the Regulatory Governance of Markets and in National Security A DISSERTATION Submitted in Partial Fulfilment of the Requirements for the Degree of Doctor Iuris To the Department of Law of Freie Universität Berlin by Ioannis Kampourakis Berlin, 2018 Referees: Prof. Dr. Klaus Hoffmann-Holland Prof. Dr. Mordechai Kremnitzer Date of defence: 10 July 2019 List of abbreviations ACHPR African Commission on Human and Peoples’ Rights CCSDN Commission consultative du secret de la défense nationale CIA U.S. Central Intelligence Agency CME Coordinated Market Economy CNCTR Commission de Contrôle des Activités de Renseignement CPP French Code of Penal Procedure CSR Corporate Social Responsibility ECHR European Convention of Human Rights ECtHR European Court of Human Rights FBI U.S. Federal Bureau of Investigation FISC U.S. Foreign Intelligence Surveillance Court FOIA U.S. Freedom of Information Act GRI Global Reporting Initiative ICCPR International Covenant on Civil and Political Rights ICWPA U.S. Intelligence Community Whistleblower Protection Act ISC UK Intelligence and Security Committee LME Liberal Market Economy NPM New Public Management NSL National Security Letters OAS Organization of American States OECD Organisation for Economic Co-operation and Development OLC U.S. Office of Legal Counsel OSCE Organization for Security and Co-operation in Europe PIDA U.K. Public Interest Disclosure Act PPD-19 Presidential Policy Directive 19 QPC Question Prioritaire de Constitutionnalité SEC U.S. Securities and Exchange Commission SOX Sarbanes-Oxley Act UNCAC United Nations Convention Against Corruption UNODC United Nations Office on Drugs and Crime WPA U.S. Whistleblower Protection Act WPEA U.S. Whistleblower Enhancement Act Table of Contents 1. Introduction ................................................................................................... 1 The rise of whistleblowing to prominence and the transparency discourse ......... 1 The dualism hypothesis: Research questions ........................................................... 4 Definitions and distinctions ........................................................................................ 8 1.3.1. Whistleblowing ..................................................................................................... 8 1.3.2. Regulatory governance........................................................................................ 10 1.3.3. National Security ................................................................................................. 12 1.3.4. Transparency, secrecy, and dialectics ................................................................. 12 1.3.5. Information age ................................................................................................... 14 Methodology .............................................................................................................. 15 Plan ............................................................................................................................ 20 2. The functional approach to transparency: Whistleblowing in regulatory governance ................................................................................ 23 Whence transparency? The functional rationale for the emergence of transparency in contemporary governance and regulation.................................. 25 2.1.1. The historical shift laying the foundations for a new conceptualization of democratic legitimacy and governance ............................................................... 28 2.1.1.1. Legitimacy through representation ............................................................... 28 2.1.1.2. Criticizing a State of “unfreedom” and the neoliberal project ..................... 31 2.1.1.3. The erosion of collective identities and the individualization of the workforce ....................................................................................................... 34 2.1.1.4. The advent of sub-politics .............................................................................. 36 2.1.2. The crucial role of transparency in the deliberative democracy paradigm .................................................................................................................... 39 2.1.2.1. A paradigm shift? Deliberative democracy and classic liberalism .............. 39 2.1.2.2. The Habermasian model of democratic principle and discursive participation .................................................................................................. 43 2.1.2.3. Transparency as a prerequisite for the legitimacy of norms ......................... 46 2.1.2.4. Deliberation, new governance, and participation: The ambiguous mediating role of transparency ..................................................................... 49 2.1.3. The function of transparency in contemporary governance: Between efficiency and legitimacy .................................................................................... 52 2.1.3.1. A (nominal) increase of governmental and institutional transparency ......... 52 2.1.3.2. Transparency within governance: assuring legitimacy through public accountability ................................................................................................ 56 2.1.3.3. Transparency as governmental rationality ................................................... 59 2.1.4. The function of transparency in corporate regulation: New governance, reputational accountability, and the optimal information flow for market economy .............................................................................................................. 64 2.1.4.1. Transparency as fundamental for Corporate Governance ........................... 64 2.1.4.2. From Corporate Governance to Corporate Social Responsibility: The advent of non-financial disclosures ............................................................... 67 2.1.4.3. Toward a ‘new governance’ paradigm ......................................................... 73 Effectuating transparency: The diffusion of whistleblowing legislation in the United States and the European Union and its function in securing market conditions ..................................................................................................... 78 2.2.1. Whistleblowing as a transnational regulatory instrument ................................... 81 2.2.1.1. Facilitation and protection of whistleblowing as transparency reform ........ 81 2.2.1.2. The history of whistleblowing protection: A nexus of efficiency and individualism ................................................................................................. 83 2.2.1.3. Whistleblowing in international law: A “soft law” approach that brings results ............................................................................................................ 87 2.2.1.4. Whistleblowing as a transnational phenomenon: Beyond the continental divide ............................................................................................................. 92 2.2.2. Whistleblowing as function: The U.S. example of corporate and financial regulation............................................................................................................. 95 2.2.2.1. The Sarbanes-Oxley Act of 2002: The dawn of a new approach to whistleblowing protection ............................................................................. 95 2.2.2.1.1. The scope of protection: Subject of protection and type of conduct ..... 97 2.2.2.1.2. Procedure: Internal vs. External Whistleblowing (Part A) .................. 100 2.2.2.2. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010: A different approach to “problem-solving” ...................................... 102 2.2.2.2.1. Financial incentives and the -resolved- ambiguity over internal whistleblowers ..................................................................................... 102 2.2.2.2.2. Internal vs. External whistleblowing (Part B)...................................... 104 2.2.2.3. And trade secrets? ....................................................................................... 106 2.2.3. Protecting whistleblowers in the EU: A progressive expansion of the legislative framework and the dominant instrumental approach ...................... 109 2.2.3.1. Main issues aspects and issues of whistleblower protection in European states ............................................................................................................ 109 2.2.3.1.1. Scope of protection .............................................................................. 110 2.2.3.1.2. Channels and procedure ....................................................................... 113 2.2.3.1.3. Public interest and good faith .............................................................. 116 2.2.3.1.4. Financial incentives ............................................................................. 119 2.2.3.1.5. Anonymity and data protection ............................................................ 120 2.2.3.2. The first European framework for whistleblowing protection: The instrumental approach of the Market Abuse Regulation ............................. 122 2.2.3.3. Whistleblowing contributing to a well-functioning single market: The proposal for a Directive on the protection of whistleblowers ..................... 125 2.2.3.4. The Trade Secret Directive
Load more

Recommended publications
  • Articles the Unitary Executive and the Plural Judiciary
    \\jciprod01\productn\N\NDL\89-3\NDL301.txt unknown Seq: 1 17-FEB-14 14:19 ARTICLES THE UNITARY EXECUTIVE AND THE PLURAL JUDICIARY: ON THE POTENTIAL VIRTUES OF DECENTRALIZED JUDICIAL POWER Ronald J. Krotoszynski, Jr.* ABSTRACT The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exer- cise of federal judicial power. The role of the state courts in enforcing federal law further subdi- vides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions—literally in a multiplicity of hands—effectively precluding its unilateral or precipitate exercise by a single person. The standard narrative posits that the radically decentral- © 2014 Ronald J. Krotoszynski, Jr. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * John S. Stone Chair, Director of Faculty Research, and Professor of Law, University of Alabama School of Law. This Article reflects the benefit of the thoughtful and constructive suggestions of the law faculties at the Cornell Law School, Indiana University- Bloomington Maurer School of Law, Loyola University-Los Angeles School of Law, Pepperdine University School of Law, University of Missouri-Columbia School of Law, and Tulane University School of Law, which all hosted faculty workshops associated with this project.
    [Show full text]
  • Nondelegation and the Unitary Executive
    NONDELEGATION AND THE UNITARY EXECUTIVE Douglas H. Ginsburg∗ Steven Menashi∗∗ Americans have always mistrusted executive power, but only re- cently has “the unitary executive” emerged as the bogeyman of Amer- ican politics. According to popular accounts, the idea of the unitary executive is one of “presidential dictatorship”1 that promises not only “a dramatic expansion of the chief executive’s powers”2 but also “a minimum of legislative or judicial oversight”3 for an American Presi- dent to exercise “essentially limitless power”4 and thereby to “destroy the balance of power shared by our three co-equal branches of gov- ernment.”5 Readers of the daily press are led to conclude the very notion of a unitary executive is a demonic modern invention of po- litical conservatives,6 “a marginal constitutional theory” invented by Professor John Yoo at UC Berkeley,7 or a bald-faced power grab con- jured up by the administration of George W. Bush,8 including, most ∗ Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit. ∗∗ Olin/Searle Fellow, Georgetown University Law Center. The authors thank Richard Ep- stein and Jeremy Rabkin for helpful comments on an earlier draft. 1 John E. Finn, Opinion, Enumerating Absolute Power? Who Needs the Rest of the Constitution?, HARTFORD COURANT, Apr. 6, 2008, at C1. 2 Tim Rutten, Book Review, Lincoln, As Defined by War, L.A. TIMES, Oct. 29, 2008, at E1. 3 Editorial, Executive Excess, GLOBE & MAIL (Toronto), Nov. 12, 2008, at A22. 4 Robyn Blumner, Once Again We’ll Be a Nation of Laws, ST.
    [Show full text]
  • Contested Ground: Presidential Power and the Constitution Daniel Farber (Oct. 2019 Draft) As the Title Indicates, This Is a Book
    Contested Ground: Presidential Power and the Constitution Daniel Farber (Oct. 2019 Draft) As the title indicates, this is a book about the constitutional powers of the Presidents and their limits. The plan is for a short book aimed at the general reader (thus, few if any footnotes, informal tone, etc.) I would like the book to be useful for readers regardless of their political stance or viewpoint on executive power. The book begins by laying some foundations, explaining the history leading up to Article II of the Constitution; the language of Article II; and the current battle over the “unitary executive” theory. Many issues that arose in the early years continue to percolate today. These issues include the degree of presidential control over the Executive Branch, Presidential autonomy in foreign affairs, the President’s power to take military actions, and the President’s power to respond to unexpected emergencies. These issues occupy the middle portion of the book. The final part of the book discusses the constitutional checks on presidential power. Constitutional law also limits presidential power in several ways. Courts may intervene either to prevent the President from straying outside of the powers granted by Article III, or to enforce the restrictions that the Bill of Rights places on all governmental powers. Judicial efforts to limit presidential powers encounter constitutional issues of their own, involving matters such as executive privilege, presidential immunity from damages, and possible limits on criminal prosecution of a president. Congress also has the ability to impose checks on the President, such as use of the power of the purse, congressional investigations, and ultimately the power of impeachment.
    [Show full text]
  • Indirect Constraints on the Office of Legal Counsel: Examining a Role for the Senate Judiciary Committee
    Stanford Law Review Volume 73 June 2021 NOTE Indirect Constraints on the Office of Legal Counsel: Examining a Role for the Senate Judiciary Committee William S. Janover* Abstract. As arbiter of the constitutionality of executive actions, the Department of Justice Office of Legal Counsel (OLC) possesses vast authority over the operation of the federal government and is one of the primary vessels for the articulation of executive power. It therefore is not surprising that the OLC has found itself at the center of controversy across Democratic and Republican administrations. OLC opinions have justified the obstruction of valid congressional investigations, the targeted killing of an American citizen overseas, repeated military incursions without congressional approval, and, most infamously, torture. These episodes have generated a significant body of proposals to reform, constrain, or altogether eliminate the OLC. All of these proposals can be categorized as either direct or indirect constraints on how the OLC operates. Direct constraints target how the OLC actually creates its legal work product. Indirect constraints instead focus on the OLC’s personnel or the public scrutiny the Office’s opinions will face. This Note expands on this existing body of research, focusing on how one institution unstudied in this context, the United States Senate Judiciary Committee, can operationalize meaningful indirect constraints on the OLC. Unlike the other actors that scholars have examined, the Committee’s position outside the executive branch allows it to sidestep the President’s ever-expanding reach within the federal bureaucracy. At the same time, the Committee’s oversight powers and its central role in the nomination of both the OLC’s leader and Article III judges give it important constitutional and statutory authority to constrain the Office.
    [Show full text]
  • The President's Power to Execute the Laws
    Article The President's Power To Execute the Laws Steven G. Calabresit and Saikrishna B. Prakash" CONTENTS I. M ETHODOLOGY ............................................ 550 A. The Primacy of the Constitutional Text ........................ 551 B. The Source of Confusion Regarding Originalisin ................. 556 C. More on Whose Original Understanding Counts and Why ........... 558 II. THE TEXTUAL CASE FOR A TRINITY OF POWERS AND OF PERSONNEL ...... 559 A. The ConstitutionalText: An Exclusive Trinity of Powers ............ 560 B. The Textual Case for Unenunterated Powers of Government Is Much Harder To Make than the Case for Unenumnerated Individual Rights .... 564 C. Three Types of Institutions and Personnel ...................... 566 D. Why the Constitutional Trinity Leads to a Strongly Unitary Executive ... 568 Associate Professor, Northwestern University School of Law. B.A.. Yale University, 1980, 1 D, Yale University, 1983. B.A., Stanford University. 1990; J.D.. Yale University, 1993. The authors arc very grateful for the many helpful comments and suggestions of Akhil Reed Amar. Perry Bechky. John Harrison, Gary Lawson. Lawrence Lessig, Michael W. McConnell. Thomas W. Merill. Geoffrey P. Miller. Henry P Monaghan. Alex Y.K. Oh,Michael J.Perry, Martin H. Redish. Peter L. Strauss. Cass R.Sunstein. Mary S Tyler, and Cornelius A. Vermeule. We particularly thank Larry Lessig and Cass Sunstein for graciously shanng with us numerous early drafts of their article. Finally. we wish to note that this Article is the synthesis of two separate manuscripts prepared by each of us in response to Professors Lessig and Sunstei. Professor Calabresi's manuscript developed the originalist textual arguments for the unitary Executive, and Mr Prakash's manuscript developed the pre- and post-ratification histoncal arguments.
    [Show full text]
  • Three Themes from Raz
    Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2005 Three Themes from Raz Leslie Green Osgoode Hall Law School of York University Source Publication: Oxford Journal of Legal Studies. Volume 25, Issue 3 (2005), p. 503-524. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation Green, Leslie. "Three Themes from Raz." Oxford Journal of Legal Studies 25.3 (2005): 503-524. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Three Themes from Raz† Leslie Green* The robust interest in analytic jurisprudence among legal philosophers is testament to the broad and deep influence of Joseph Raz. To find another legal theorist who has not only produced an indispensable body of work, but who taught and encouraged so many jurisprudents of the next generation, one has to go back to his forebear, H.L.A. Hart. But Raz’s influence is not just a matter of passing on the torch. Raz controverted so many of Hart’s central ideas that legal positivism, and in some respects even legal philosophy, will never be the same again. That rules are social practices, that every legal system has one rule of recognition, that the validity of law may depend on moral principles, that rights protect important choices, that there is a duty in fairness to obey the law—the hard times on which each of these Hartian ideas has fallen are due in no small part to the power of Raz’s criticisms, and Raz’s competing views are themselves now the subject of many discussions among lawyers, philosophers and political theorists.
    [Show full text]
  • Assessing the Unitary Executive As the Strongest Determinant of Presidential Success
    City University of New York (CUNY) CUNY Academic Works All Dissertations, Theses, and Capstone Projects Dissertations, Theses, and Capstone Projects 5-2019 Presidential Power: Assessing the Unitary Executive as the Strongest Determinant of Presidential Success Maxwell J. Fuerderer The Graduate Center, City University of New York How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/gc_etds/3088 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] Presidential Power: Assessing the Unitary Executive as the Strongest Determinant of Presidential Success By Maxwell James Fuerderer A master’s thesis submitted to the Graduate Faculty in Political Science in partial fulfillment of the requirements for the degree of Master of Arts, The City University of New York, 2019. i © 2019 Maxwell James Fuerderer All Rights Reserved ii Presidential Power: Assessing the Unitary Executive as the Strongest Determinant of Presidential Success: A Case Study By Maxwell James Fuerderer This manuscript has been read and accepted for the Graduate Faculty in Political Science satisfying the thesis requirement for the degree of Master of Arts. ___________________ _______ ___Charles Tien___________ Date Thesis Advisor (Print) ________________________________ Thesis Advisor (Signature) ____________Alyson Cole_____________ Executive Officer (Print) _____________________ Date _________________________________ Executive Officer (Signature) iii Abstract “Presidential Power: Assessing the Unitary Executive as the Strongest Determinant of Presidential Success” By Maxwell J. Fuerderer Faculty Advisor: Charles Tien The Unitary Executive Theory, which implies that the president should have plenary authority over executive branch functions, and is the sole arbiter of executive power, can be attributed to increasing the powers of the presidency and overall making a president more successful in his policy endeavors.
    [Show full text]
  • The Unitary Executive During the Second Half-Century
    THE UNITARY EXECUTIVE DURING THE SECOND HALF-CENTURY * STEVEN G. CALABRESI ** CHRISTOPHER S. YOO I. INTRODUCTION .....................................................668 II. THE UNITARY EXECUTIVE DURING THE JACKSONIAN PERIOD, 1837-1861 .........................669 A. Martin Van Buren .................................................670 B. William H. Harrison ..............................................678 C. John Tyler...............................................................682 D. James K. Polk..........................................................688 E. Zachary Taylor.......................................................694 F. Millard Fillmore.....................................................698 G. Franklin Pierce.......................................................704 H. James Buchanan .....................................................709 III. THE UNITARY EXECUTIVE DURING THE CIVIL WAR, 1861-1869 ..................................717 A. Abraham Lincoln....................................................718 B. Andrew Johnson.....................................................737 C. The Tenure of Office Act and the Impeachment of Andrew Johnson .................................................746 IV. THE UNITARY EXECUTIVE DURING THE GILDED AGE, 1869-1889................................759 A. Ulysses S. Grant ....................................................759 B. Rutherford B. Hayes...............................................769 C. James A. Garfield....................................................780 D. Chester
    [Show full text]
  • Program Guide 2018 Safeguarding the Rule Of
    Program Guide 2018 Safeguarding the Rule of Law As John Adams wrote in 1780, the rule of law at its most essential means a “government of laws and not of men.”1 The rule of law is “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to the laws that are publicly promulgated, equally enforced and independently adjudicated.”2 Among these principles of governance within the U.S. constitutional regime are separation of powers, democratic accountability, transparency, and norms that guide officials in their use of political power.3 Critics argue that the United States is currently being led by an executive who demonstrates autocratic tendencies, with a record of ignoring established legal processes, dismantling democratic conventions, and flouting norms that help preserve a stable, reliable government. In light of these circumstances, ACS encourages chapters to host events in 2018 examining the rule of law in the federal system. I. Separation of Powers In our constitutional structure, each branch of government plays a role in maintaining the stability and accountability of the government by checking the other branches’ exercise of power. Within this delicate balance, efforts by one branch to subvert the authority or legitimacy of either of the other branches threatens the rule of law. A. Independent Judiciary The judiciary’s power “extend[s] to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”4 Implicit in this grant is the power to review acts of Congress and the executive to determine their constitutionality.5 The independence of the judiciary—in which “judges exercis[e] judicial powers 1 MASS.
    [Show full text]
  • Heinonline (PDF)
    +(,1 2 1/,1( Citation: John Harrison, The Unitary Executive and the Scope of Executive Power, 126 Yale L.J. F. 374 (2016-2017) Provided by: University of Virginia Law Library Content downloaded/printed from HeinOnline Thu Sep 6 11:08:01 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. Use QR Code reader to send PDF to your smartphone or tablet device THE YALE LAW JOURNAL FORUM JANUARY 24, 2017 The Unitary Executive and the Scope of Executive Power John Harrison In the Justice Department's Office of Legal Counsel (OLC) in the 198os, "unitary" meant unitary, as in e pluribus unum. When Deputy Assistant Attor- ney General Samuel Alito and his colleagues in OLC used the phrase "unitary executive'" they used "unitary" to convey two kinds of oneness. The executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him. In 2000, then-Judge Alito participated in a discussion of executive power, and noted his endorse- ment of the unitary executive theory that he had espoused while at OLC.' Over the next few years, "unitary" in "unitary executive" took on an added meaning: allowed to depart from the law, including the law of war, in some cir- 1. "When I was in OLC, however, we were known, actually, to read the text of the Constitu- tion, in particular Article Two, as well as The FederalistPapers.
    [Show full text]
  • Reflections on Punishment from the 21St Century
    RANDOMIZATION & SOCIAL PHYSICS: POST-MODERN MEDITATIONS ON PUNISHMENT ~~~//~~~ A Polemic and Manifesto for the 21st Century Bernard E. Harcourt University of Chicago Paper Presented at Columbia University Legal Theory Workshop February 26, 2007 February 26, 2006 Post-Modern Meditations on Punishment 1 Preface Enlightenment is man’s emergence from his self-incurred immaturity. Immaturity is the inability to use one’s own understanding without the guidance of another. Immanuel Kant, An Answer to the Question: ‘What is Enlightenment?’ (1784) In an essay bearing the same title, Michel Foucault read Kant’s text against the backdrop of his critique of reason, published just three years earlier. It is precisely at the moment that we assert ourselves as mature beings, Foucault observed, that it is most important to recognize the limits of reason. “It is precisely at this moment that the critique is necessary, since its role is that of defining the conditions under which the use of reason is legitimate in order to determine what can be known, what must be done, and what may be hoped” (Foucault 1997: 308). Foucault warned us, with Kant, that reliance on reason beyond its proper bounds would merely set the clock back: “Illegitimate uses of reason are what give rise to dogmatism and heteronomy, along with illusion” (1997:308). The careful and critical use of reason, in contrast, is what enlightens and leads forward, out of the shadows of illusion. But it could only do so by relying on itself. The modern period would thus embrace a strong conception of self-reliance—carefully bounded by critique.
    [Show full text]
  • The Illusory Unitary Executive: a Presidential Penchant for Jackson’S Youngstown Concurrence
    THE ILLUSORY UNITARY EXECUTIVE: A PRESIDENTIAL PENCHANT FOR JACKSON’S YOUNGSTOWN CONCURRENCE Captain Richard K. Sala INTRODUCTION .......................................................................................... 155 I. COMPETING THEORIES OF THE UNITARY EXECUTIVE ........................... 163 A. Unitary Executive Theory at the Macro Level ................................. 163 B. Unitary Executive Theory at the Micro Level .................................. 165 C. Inapplicability After September 11 .................................................. 166 II. SEPARATION OF POWERS AND THE UNITARY EXECUTIVE ................... 172 A. The Import of Traditional Checks and Balances .............................. 174 B. The Executive’s Proclivity Toward Cooperation ............................. 180 C. Congress’s Investiture of a Unitary Executive ................................. 186 III. THE OBAMA ADMINISTRATION AND THE AUMF ............................... 188 A. The O’Connor Question ................................................................... 189 B. The Predator/Reaper Drone Program and the AUMF .................... 191 CONCLUSION ............................................................................................. 196 INTRODUCTION The presidency of “George W. Bush . sparked a resurgence in popular interest in presidential power”1 and brought scholarly debate and research regarding the reach of that power to the leading edge of academic discourse. Among the most contentious of these theories is the Unitary Executive
    [Show full text]