We have today seen President Bush’s legal defense for the surveillance program. There is, he tells us, an unparalled crisis.
It reminds me of the United States Supreme Court in Bush v. Gore,
stating they had to interfere with the election and overrule the
Florida Supreme Court because we were in a national crisis — we
couldn’t have a president elected at the appropriate time and place.
There was then a democracy with the Constitution telling us exactly how the election should be handled.
There is no crisis today that justifies suspending the constitution.
There is a constitution in effect today. That constitution has endured
for over 200 years.
Bush’s cry of “crisis” is as false as former Chief Justice Rehnquist’s
(and four other Justices) cry of crisis. Each time both Rehnquist and
Bush tried to set aside the Constitution to get an illegal result.
No president in over 200 years of our history has ever before
claimed the “unitary powers” that Bush claims are his. Not President
Lincoln during the Civil War, not President Wilson during World War I,
not President Roosevelt during World War II, not President Truman
during Korea, and not Presidents Johnson and Nixon during Vietnam.
Thomas Jefferson, George Washington, Benjamin Franklin, and James
Madison all saw the danger — they never arrogated that power to the
presidency.
Alito and Roberts, Thomas and Scalia, claim it, Bush claims it.
Kennedy, who said in Bush v. Gore the Court was reconsidering the
design of the government, will surely go along.
The President claims that he has the right to interpret laws “in a
manner consistent with the Constitutional authority of the President to
supervise the unitary executive branch and as the Commander-in-Chief
and consistent with constitutional limitations on judicial power.”
Bush bridled when asked by a reporter if “unchecked” presidential
powers were dictatorial, angrily said, “I disagree with your view of
unchecked power. There is the check of people being sworn to uphold the
law for starters. There is oversight. We’re talking to Congress all the
time . . . to say unchecked powers is to ascribe dictatorial powers to
the president, to which I object.”
His objection is dishonest.
What does “unitary powers” mean? It means that if the President
alone decides that the country is faced with what he alone defines to
be a critical problem, his authority is unchecked. In other words, he
decides where the powers lies in the Constitution — he decides the
contour of his power. This sounds more like a monarchy, more like
authoritarianism than a democracy.
The taking of this power is not a coup d’état because the people
today have the power of the vote in 2008. But it is dangerously close
on that path — the Founders recognized the danger of a too-powerful
President.
The Bush Administration told us it does not deal with reality — it
creates reality — Bush has created a legal façade allowing him to
create his own world and then react to it as he chooses. Unfortunately,
we are all dragged into his make-believe world with its make-believe
legal system.
Samuel Alito, John Roberts (in his Circuit Court decisions),
Attorney General Alberto Gonzalez, and wunderkind John Yoo give the
President unchecked domestic and foreign powers to create that world.
Bush can start his own wars, preemptive or otherwise, is the ultimate
interpreter of foreign treaties, he defines enemy combatants as he
wishes, he detains prisoners for as long as he wishes, he continues
surveillance on foreign intercepts for as long as he wishes, he
tortures as he wishes, he can ignore Congressional directives and
statutes such as those creating FISA, as well as essential elements of
our Constitution.
This litany has no end. We cannot now anticipate all the
ramifications of the “unitary” president and his claim of “inherent
powers,” except that it clearly allows him to fully take over the
government.
Although the Alito nomination process was largely a waste, it was
very valuable in showing us how long and hard the Conservatives have
thought about the “unitary” president. In Alito’s earliest days with
the Reagan administration, he laid out his concept of unchecked power
— of inherent authority. Tracing the clear, straight line from Meese
to Bork to Alito to Thomas to Yoo to Gonzalez is easy, for those who
can look. We can see the further immediate development, deepening and
expansion of the concept of the unitary President that it became, long
ago, before anyone was aware of it, a critical tenet of the Federalist
Society and of the Conservative wing of the Republican Party.
The new power the President has come from somewhere. If you give him
new powers, it comes at the expense of the people who previously had
the power through the Congress to make those decisions.
This idea of this change of the power structure was not a flash in
the pan idea — it is not a concept without a meaning — it is very
serious and must be treated as such.
Gonzalez, Alito and Roberts argue that if the Constitution does not
very specifically preclude the President’s actions, he has a free hand.
They claim they are writing on a clean slate. If the Founding Fathers
did not anticipate everything a President might try and do and did not
prohibit it, then Bush can do it. Only a document far, far longer than
this Constitution could even attempt to scratch at the surface of these
unforeseen events.
The Bush Administration ignore centuries of Constitutional
decision-making that limits the President, decisions during the Civil
War, World War II, World War II and the Korean, Vietnamese and Cold
Wars. In the unlikely event the new Supreme Court does not give him all
he wants, he will ignore those decisions as well.
That is truly what a “unitary” president means. If America did not pay attention before, it must now.