What Will Happen to the "Unitary Executive" in the Next Presidential Term?

What if you learned that there were no longer three co-equal branches of government, that the Executive Branch now held powers that could not be checked by Congress or the Courts? Aside from the controversy surrounding "signing statements," what if the President could legally ignore every law that Congress passed? Would you consider it a constitutional crisis? Former US Assistant Attorney General Jack L. Goldsmith sure did.

It's called "Unitary Executive" theory, and its premise is that the Constitution guarantees the President unlimited power to protect the nation in a "time of emergency." It has been the hallmark of the Bush/Cheney presidency, and it has reorganized our governmental legal structure in a way not seen since the passage of the National Security Act of 1947.

In case you missed it (and if you did, please consider viewing) last November'sFrontline broadcast "Cheney's Law" an examination of the VP's lifelong political quest to give the President unchecked power in a time of "national emergency." The segment opens with:

"For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review."

Charlie Savage was right there with Goldsmith. The Pulitzer-prize winning reporter from the Boston Globe, called out "Unitary Executive" theory for what it is in his book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy . In an interview with Amy Goodman Savage said that accomplishing the legal maneuvers behind creating the "Unitary Executive" was the "single most successfully implemented policy" of the Bush/Cheney administration.

He concludes, "It's easier to increase than it is to roll back again. And I don't see, because of the continuing dynamic of the war on terror, this being reversed"

Thankfully, the good news is that once the "takeover" strategy was exposed, it quickly became a hot story, and none too soon. If you remember, Naomi Wolf wrote about it for HP in a piece called "A Paper Coup" in which she said:

"Increasingly, reputable figures are starting to talk about "a coup." Jim Hightower notes in an important essay, "Is a Presidential Coup Under Way?," that a coup is defined in the dictionary as a sudden forced change in the form of government. (He also spells out the basis for a rigorously modeled impeachment and criminal prosecution.) Daniel Ellsberg's much-emailed speech on recent events notes that, in his view, a "coup" has already taken place. Ron Rosenbaum speculates in an essay on Slate about the reasons the Bush administration is withholding even from members of Congress its plans for Continuity of Government in an emergency -- noting that those worrying about a coup are no longer so marginal. Frank Rich notes the parallels between ourselves and the Good Germans. And Congress belatedly realizes as if waking from a drugged sleep that it might not be okay for the Attorney General to say the President need not obey the law. Congress may realize why Mukasey CAN'T say that "waterboarding is torture" -- the minute he does so he has laid the grounds for Bush, Cheney and any number of CIA and Blackwater interrogators to be tried and convicted for war crimes."

The far reaching possibilities, and ramifications, of unchecked Presidential power are precisely what the framers of the Constitution were trying to protect themselves from. There is a reason the three branches of government are co-equal.

As Wolf concludes, "If it takes hearings and possible prosecutions to restore the rule of law and maintain a free society, then it is past time for the hearings to begin."

But was she being naive, or perhaps putting too much faith in our (now out-of-whack) system of checks and balances? The evidence seems to point in that direction. If the Presidency hasn't followed those rules all along, what makes Wolf and others think that they will begin playing by the rules simply because Congress decides to try and enforce them?

The question is, can a Unitary Executive be impeached if he is not beholden to the mandates of either Congress or the Supreme Court? As you may surmise, it's mostly a rhetorical question: the answer is "yes" (despite it being, ahem, "off the table," thank you Ms. Pelosi) except, of course, if there is a "national emergency" of any kind. In that scenario, our Constitutional protections quickly evaporate like gas in your tank these days. This is a very frightening proposition. Virtually anything can constitute a "national emergency": economic strife, terrorist attack, natural disaster, or bombing Iran quickly come to mind.

I have another, far more pressing question: What will happen to the "Unitary Executive" should Barak Obama become our next President? It's a lock to assume nothing will change under John McCain, and there were huge doubts about it changing under Hillary Clinton. But what about Obama? Will he willingly hand back these incredible powers, or refuse to exert them if they are not officially legally rescinded?

More importantly, the last eight years has seen the largest expansion in overtly repressive, martial legislation in American history (and again, if you're unfamiliar with this effluvia of terrifying laws that go far beyond merely the onerous Patriot Act, please do take a moment to study them... at best, they cast the word "freedom" in a painfully ironic light). Will Obama undo any of it?

Mr. Obama?

Comments

[Senzasord]

The Founding Fathers may have debated unitary theory but they certainly did not adopt it. There is a whole list of executive powers vested in the Congress, (coin money, regulate weights and measures, declare war etc.). Signing statements in which the president decides to ignore or not to enforce laws passed by Congress are Unconstitutional. Those who conspire to help the president usurp powers that are not rightfully his are abetting dictatorship. G.W. Bush made that obvious when he said, "It would be easier if this were a dictatorship, just as long as I am the dictator." That demonstrates beyond all doubt the extent to which Unitary Executive Theory is a clear and present danger to our country.

[lvdragonlady]

Makes you wonder if 'maybe' cheney was behind what happened on 9/11?
What if he knew it would happen BUT did nothing???

[lvdragonlady]

IMPEACH BUSH/CHENEY 08

[hopeless277]

It will be expanded to give Bush, even though he is not still president, complete control over each and every aspect of government. The Democrats will be outraged just before they all go on vacation.

[Cathexis]

Ironically, even if the Dems were craven enough to pursue UE policy, the now-Minority GOP would be screaming against it, as if the past eight years never happened.

[NABNYC]

We are talking about the early stages of a dictatorship with a secret police, private military, and compliant legislature. Let's not adopt the silly words used by the Bush regime to cover up the truth.

A dictatorship: one man gets to do whatever he wants regardless of the law, is answerable to no one, and can refuse to provide any information to anyone about what he has done. Secret police: they answer only to the dictator. They do whatever they want including "disappearing" people, arresting without charges, detaining without trial, torture, murder, and are accountable to no one but the dictator. Private military: this allows the dictator to extend his evil reign to countries near and far. Without oversight or accountability to anyone.

Let's not use the wrong words. It's a dictatorship with secret police and a private military. Most of the Democrats have enthusiastically supported the adoption of the dictatorship in this country. A lot of our citizens have too.

[Sundialsvc4]

What is there to "undo?"

The entire premise is Unconstitutional.

No, no, hear me out. What is any document that calls itself "the Supreme Law of the Land," if it can be ignored by any civil officer under the government that it creates ... under any circumstances at all?

It is nothing but "a blee-blee piece of paper."

We know that this is how these thugs regard that document, but that's not how the document regards itself. Either the system of government must be supreme, or no government exists at all.

Every despotic dictator known to man, except Adolf Hitler, came into his powers "in time of war," or in response to "a national emergency" that obliged him or her to "suspend the constitution," blee-blee-blee. The phrasing was different but the excuse was always the same. And the outcome, to whatever Republic it was, was always the utter and complete devastation of that Republic.

The President's powers are closely checked; not "unlimited."

The duty of the Congress, that it "SHALL impeach 'any civil officer,'" is not discretionary; it is unconditional. It is the duty of a Grand Jury.

Over-arching every single aspect of the Government created by the Constitution ... and subject to the "interpretation" of no one man ... is this simple phrase: SUPREME LAW.

[TrevorAlan]

I don't like proposing a constitutional ammendment for every little thing, but it might be necessary to further define what a president can and cannot do, and in what way he and his office is beholden to the courts and Congress together and each individual body.

I assume Obama would not use the same heavy handed techniques, but not only could I be wrong, within eight or 16 years the problem will be back with Romney or Jeb Bush or some clown weve never heard of. We need to hear during this campaign some specific proposals to scale back the Imperial Presidency without gutting that office's duties.

[swift goat pet for truth]

Congress did not do its job. The GOP AND the Dems just rolled over and died for Bush.

the problem is the people in government, not the Constitution or the laws.

[syllepsis]

agreed. The Constitution is the solution, not the problem.

[jhNY]

Mr. Obama is but the latest manifestation of our present cult of personality politics, in which the apparent personal characteristics of candidates out-trump all other qualifications for office. We have, as a nation, persuaded ourselves (at great monetary cost to the persuaders, hidden and otherwise) that democracy is distasteful and its institutions hidebound and sclerotic. Now, we hope our great leader (Obama now, Bush then) will leap boldly over his constitutional constraints and do great things which will vouchsafe our exceptionalism and entitlement, both of which can be justified as belief only by the representative democracy we have grown weary of.

[Parducci]

Please, this post is way off base. Unitary executive theory has nothing to do with unequal power among the branches, but simply states that the executive power of the U.S. Government is wielded solely by the President and not by the legislative or judicial branches. FDR was a major proponent of the unitary executive which was debated by the Founders.

This is not to say that there are not political implications to one's position on this when the executive branch of government is controlled by one party and the legislative branch by the other. It's just not as dark as the poster would have you think.

Please follow the link to the University of Chicago Law School blog for a reasoned explanation of what is meant by unitary executive theory.

http://uchicagolaw.typepad.com/faculty/2007/08/what-the-unitar.html

[munkeyfuk]

Parducci,

U of Chicago, where great minds like Leo Strauss, Milton Freidman (and Don Rumsfeld) and Alan Bloom enlightened us with their collective wisdom?
I'll pass, thanks.

[Parducci]

None of whom have anything to do with the Law School. Nor does the UChicago post argue one way or the other. It simply provides a definition. But I understand you are reluctant to read anything from the Univ of Chicago.

How about Boston University, then? Or did a conservative attend there, too?
http://www.bu.edu/law/faculty/scholarship/workingpapers/Sloane-Scope-Executive-Power.html

[Via]

"Thankfully, the good news is that once the "takeover" strategy was exposed, it quickly became a hot story"

Yes, but it only became a hot story on progressive blogs or Countdown. The vast majority of people in this country have never heard of Naomi Wolf or the Huffington Post. They watch FOX or CNN and are given misleading or downright untruthful information, if they get any information at all. I would wager that 9 out of 10 people on the street have never heard of the Unitary Executive, David Addington or John Yoo. We must once and for all start preaching to someone other than the choir or get used to the person across from us in the circle jerk.