Even before his confirmation hearings for the Supreme Court, it was clear that Judge Samuel Alito believed in the obscure doctrine of the “unitary executive.” After the hearings, we still don’t know exactly what Alito thinks about the limits, if any, of presidential power. But in the Bush era, few issues are more important.
The doctrine of the unitary executive – that is, an executive branch under the control of the president alone – is not clearly established by either the Constitution or historical precedent. For some observers it means, relatively uncontroversially, that the president should have supervisory authority over members of the executive. For others, it means that Congress can’t establish agencies, like the Securities and Exchange Commission that are independent of the president. But it could also mean that, acting as commander-in-chief and exercising war powers, the president can do almost anything he deems necessary, and neither the courts nor Congress can intervene.
It’s this latter, dangerous view that Bush appears to hold. Of the Supreme Court justices, Clarence Thomas has taken the most radical stance, supporting the government’s right to detain even American citizens as enemy combatants without charges. Thomas’ public views still fall short of the arguments made by John Yoo, former deputy assistant attorney general in Bush’s Office of Legal Counsel, who defends the president’s right to order torture if he deems it necessary for national security.
Bush’s claims to unchecked power have grown as the legitimacy of his policies has collapsed. In response to legislation prohibiting torture sponsored by Sen. John McCain, Bush claimed to be exempt, even as he signed the law. When leakers revealed that the National Security Administration had been spying on thousands of Americans, without judicial warrants and in knowing violation of the Foreign Intelligence and Surveillance Act, Bush defended his lawbreaking.
The challenge to law and democracy posed by the Bush administration’s actions is especially dangerous because Bush’s claim to war powers and the impunity of the unitary executive lies on two deeply flawed grounds. First, he claims to be commander-in-chief of an endless “war on terror” that bears no relation to any previous war. And he asserts his power as commander of an undeclared war in Iraq that was sold on the basis of deliberate lies.
Previous presidents have abused power in wartime and lied to promote war. But Al Gore was right in his fiery address on Martin Luther King’s birthday that the threat is much greater under Bush, because of the embrace of the unitary executive theory by both his administration and probably – with Alito’s likely confirmation – by at least four members of the Supreme Court.
Ironically, as the United States justifies the aggressive use of force around the world in the name of “freedom” and “the rule of law,” both are increasingly in danger here. The threat of an imperial presidency, which has reached its highest level under Bush, is a corollary of an imperialist foreign policy that threatens both Americans and the rest of the world.
While Bush’s transgressions may be impeachable offenses, impeachment is ultimately as much a political as a legal process, and politically, it is impossible now. It makes more sense to relentlessly focus public attention and political organizing on this administration’s violations of law, as Gore did, and work to elect legislators who will challenge the administration. Already, some polls show a slim majority of the public thinks that Bush should be impeached if he lied to the American people. But it may be counterproductive to push impeachment until the political capacity exists to make it not merely a rhetorical sword but a real defense against an imperial, deceitful presidency that is a growing cancer on the nation.
David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy.