The only thing standing in the way of Republican John McCain assuming the powers and prerogatives of a dictator should he be elected president is the vote of a single Supreme Court justice.
Four of the nine current justices — Antonin Scalia, Clarence Thomas, Joseph Alito, and John Roberts (all Republican appointees) — subscribe to the view that the president is a “unitary executive,” not subject to congressional oversight and able to nullify the Constitution if he thinks such actions are necessary.
In plain language, Justices Scalia, Thomas, Alito, and Roberts believe that it is constitutional for the president to act unconstitutionally, to violate the Constitution. The idea, at first blush, seems bizarre, almost comical. But it is not a joke; or, if it is, it’s a very scary one.
It is almost a given that the next president will appoint at least one new Supreme Court justice.
Of the four justices who tend to favor more liberal or moderate interpretations of the Constitution, John Paul Stevens is 80, Ruth Bader Ginsburg 75, Stephen Breyer 70, and David Souter 69. The swing vote between the conservative and the liberal blocks, Justice William Kennedy, is 72.
McCain has promised to appoint the same sort of conservative judges as did President George W. Bush, who named Alito and Roberts to the high court. The nation can only assume that his sidekick, Sarah Palin, would do the same — or worse — if 72-year-old McCain were to die on in office.
It is telling that when Vice-President Dick Cheney, the dark brain of the Bush White House, was auditioning Alito and Roberts for their top-court gigs, he wasn’t particularly interested in their views on abortion or the execution of teenagers, two domestic issues dear to the hearts of some conservatives and most right-wingers.
Rather, Cheney was interested in Alito and Roberts’s views on executive power. He wanted to know whether they worshipped in the pew of the unitary executive.
Two things were at stake: not only, of course, the future of the Cheney/Bush-style imperial presidency (the legacy thing is big with traditionalists), but also the future criminal prosecution or administrative sanction of the hundreds — or perhaps thousands — of government employees and officials who executed the Bushies’ more questionable orders. (You have to credit that Dick; he thinks ahead.)
Bush has used the unitary-executive theory to justify domestic surveillance without warrants, the unilateral violation of treaties, and torture. This line of thinking could, in the near future, provide the bogus authority Bush — or McCain — would need to launch an attack on Iran; to go to war with Russia if Vladimir Putin’s puppet government, say, invaded the Ukraine; or to expand the scope of the secret war the United States is now waging in Pakistan.
To be fair to Bush, and by extension McCain, throughout the 20th century presidents unconstitutionally grabbed power to wage unsanctioned wars while Congress sat by and twiddled its thumbs. But what was once a constitutional outrage seems now to be perceived by some to be a divine right. (Didn’t the 13 colonies stage a revolution to rid themselves of kings?)
The idea of a unitary executive is rooted in the thinking of German legal scholar and political philosopher Carl Schmitt, who held that all executive power — even in a democracy — is essentially dictatorial. Presidents, he argued, should recognize a spade is a spade and dig in, seizing the powers they need to get their jobs done.
“If the constitution of a state is democratic,” Schmitt held, “then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.”
For Schmitt, the power of the executive to decide what constitutional provisions to ignore was the essence of leadership. The power to rule is the power to make exceptions to the law.
Schmitt, who served the Nazi Party as a lawyer and theoretician, defended in court and developed for the Nazi intellectual classes the rationale for Adolf Hitler’s seizure of power and subsequent civil terror tactics.
After the end of World War II, Schmitt was detained, questioned, and subject to house arrest by American forces. He served a year in an internment camp, but was spared harsher retribution, probably because the more extreme elements of the S.S. found him insufficiently anti-Semitic and opportunistic. Schmitt’s belief that German law should be cleansed of “Jewish spirit,” and his brief that the Nazi political massacres were “administrative law of the highest order,” apparently did not qualify him for true Aryan brotherhood.
Schmitt lived until 1985, and in his dotage became something of a guru to thinkers of both the hard right and the new left who shared his distain for liberal-style democracy.
The purest expression of Schmitt’s thinking as channeled by the Bush administration is to be found in former Bush advisor and attorney John Yoo’s defense of the presidential right to imprison without trial and torture political detainees in the name of the so-called war on terror.