The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. – Federalist 47, James Madison 1788
- Tyranny: ‘tir-&-nE
- 1. oppressive power exerted by government
- 2. a government in which absolute power is vested in a single ruler
George W. Bush and his administration have chosen a radical new way of interpreting the law as it relates to the powers of the executive.
That’s a difficult sentence to write in such simple terms. Other writers, especially lawyers, have chosen words like unlimited power, executive tyranny, and even presidential rebellion. So why are lawyers getting so upset about something which is running largely unnoticed in the media?
The short version is that the President has assumed authority based on a theory called “unitary executive” to interpret laws as he sees fit. He has been using this authority, in conjunction with “signing statements” and his interpretation of his war powers as commander-in-chief to change or even negate the meaning of legislation as he signs it in to law.
The easiest way to see how this all works is with an example. In December, after months of opposition, the Whitehouse announced that it would drop its opposition to John McCain’s bill outlawing the use of torture by the US. The administration, however, believes that Congress has no right to limit the President’s authority as commander-in-chief. When signing the Defense appropriation bill containing the McCain amendment, Bush issued a signing statement which read:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
In other words, as NYU law professor David Golove put it: “I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me” So where did all this come from?
Signing statements
The President needs, of course, to form a view about the meaning of laws in order to direct the executive branch. Signing statements were originally a means of making clear how the executive understood bills which it felt were ambiguous or unclear. From 1817 to 1981 the executive issued a total of 75 signing statements. From Reagan to Clinton the total number rose to 322. George Bush issued 435 in his first term alone.
These statements are no longer a matter of clarifying laws which could be misinterpreted, either. In 2003, for example, a signing statement on the Foreign Relations Authorization Act said:
The executive branch shall construe as advisory the provisions of the Act… that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments… Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President’s constitutional authorities to conduct the Nation’s foreign affairs, participate in international negotiations, and supervise the unitary executive branch.
In other words the executive has decided that the Congress has no right to direct the President’s actions on foreign affairs. Rather than veto the Bill, this clear change of meaning is effected by executive order. It’s also clear from statements like the constitutional limitations on the judicial power above, that the Administration does not believe the courts have the right to interfere. And with the appointment of Samuel Alito to the bench, they may not choose to.
Unitary executive
This doctrine is based on a legal theory called “coordinate construction”, which holds that the President has as much right to interpret laws as the courts. Interpret, in this sense, means “issue a binding directive as to how the law will be enforced”, which is a power normally understood to be a prerogative of the judiciary. Although not well accepted, nor tested in the courts, this approach is being used by the Administration to overrule or bypass Congress and the courts, as has been seen with the FISA wiretapping and McCain torture legislation.
Assumption of legislative and judicial powers runs directly against the constitution’s intent. John Adams:
The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.
Another construction of the “unitary executive” would make regulatory agencies such as the Securities and Exchange Commission, the FCC, and even the Federal Election Commission directly under the executive’s control, rather than operating with statutory independence as they still do at present. Justice Alito, who now probably hold the deciding vote in the Supreme Court, said of when he was a lawyer for Ronald Reagan’s White House “we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President.”
Commander in chief
Lawyers within the administration are now arguing that the President’s commander-in-chief powers, with regard to national security, are “plenary” – absolute and unqualified. Certainly Bush’s actions in regard to breaking the law on wiretapping seem to indicate that he agrees. This is how the Department of Justice responded to a question on “whether President Carter’s signature on FISA in 1978 together with his signing statement” meant that the executive had agreed to be bound by FISA’s restrictions on domestic spying:
The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President’s constitutional power. …
Just as one President may not, through signing legislation, eliminate the Executive Branch’s inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President’s ability to perform his constitutional duty.
In other words, according to the DoJ, the President is given by the Constitution the unlimited and un-limitable power to do anything he believes is necessary in order to “protect the nation.” The Congress cannot limit that power, and the President is not bound to agree to any restriction he or anyone else may place on it.
Despotism
The most telling thing about George Bush’s use of these powers in the FISA wiretapping scandal is that he exercised them in secret. He instructed the NSA to break the law, on his authority, in a situation where there was no review, no reporting, and no legal challenge. When the situation did come to light the House Intelligence Committee chose not to refer the situation to the courts so that its legality could be tested, they instead accepted that the President had the powers he had arrogated.
This is not World War 2. The “War on Terror” is no more a war than the “War on Drugs”. As much as the press and the administration like to portray a grave and imminent danger to the country, it is under attack from a few malcontents with home made bombs, and engaged in the usual police action in a far corner of the world. But in fact those 19 suicidal fanatics succeeded – the United States has been overthrown from within. George Bush and his cronies have seized absolute power quietly, piece by piece, and the legislature and the public have by and large acquiesced, fascinated and appalled by the modern day Reichstag Fire of the twin towers.
George Bush intends, by all accounts, to serve out his term and step aside for the winner of the 2008 election. He will not be leaving the same office he took up in 2001, however. Unless the Supreme Court and the House and Senate Republicans step back from their current course and actually do something about this, the presidency has become an eight year, elected, dictatorship. Or perhaps it is more true to say that the United States has become in every way an empire.
- Unitary Executive: a detailed discussion.
- Separation of powers: and why the doctrine of Unitary Executive is in conflict with this principle.
- Glenn Greenwald’s lawyer’s perspective on the NSA wiretapping.