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?