'Unitary Executive' Or Autocracy?

Paul Waldman
March 08, 2006



Paul Waldman is a senior fellow at Media Matters for America. His next book, Being Right is Not Enough: What Progressives Can Learn From Conservative Success, will be released in the spring by John Wiley & Sons.

After the 2000 election, one in which Republicans successfully hijacked the electoral process in Florida to obtain their preferred outcome and a conservative majority on the Supreme Court issued what may have been its most disgraceful decision since Dred Scott, supposedly neutral observers in the media were unanimous in their praise for the smooth operation of the government at all levels. The system worked, they said. There were no tanks in the streets, and the person who had actually won the election did the right thing and gave in. “Maybe the best thing of all,” intoned CNN’s Candy Crowley, “is that the messy feelings at the Florida ballot box have really only proven the strength of democracy.”

One cannot help but be reminded of that reaction as the Bush administration proceeds in its relentless assault on the foundations of our democratic system. We all (and no one more so than the Washington media) have an investment in the idea that “the system” is virtually immune from harm. The rule of law prevails, the institutions of the republic are immovable, and no matter who holds power at a particular moment, no official or administration can really harm the fundamental underpinnings of the world’s oldest democracy.

Yet it is no exaggeration to say that no administration in American history has had as much contempt for the law as this one. There may have been administrations more corrupt—in the briefcase-full-of-cash sense—but none which so regularly proclaimed in the light of day its belief that it alone can decide which laws to obey and which to ignore.

By now our memories are so filled with episodes of the administration's contempt for the law that each new one pushes an old one out the back door of our minds. In the most recent, Attorney General Alberto Gonzalez sent a letter to Senate Judiciary Committee chairman Arlen Specter “clarifying” testimony he gave on February 6. In what amounted to a “By the way, I kind of perjured myself before you,” Gonzales said that when he said the “Terrorist Surveillance Program” was “all that [President Bush] has authorized” in the area of warrantless surveillance, “I was confining my remarks to the Terrorist Surveillance Program as described by the President.” This tautological sleight-of-hand can lead one only to conclude that there are other “programs” of surveillance. But don’t ask what they might be.

Gonzales also noted that when he said—three times—that the Justice Department had not conducted any analysis of whether purely domestic wiretapping without a warrant might be legal, he might have left the “misimpression” that the Justice Department had not conducted any analysis of whether purely domestic wiretapping without a warrant might be legal. Oops.

The response from the Judiciary Committee, of course, was a great big pile of nothing. By now such admissions have become so routine, they fail to bring attention beyond a story buried deep in the back pages of The Washington Post. After all, this is the administration that leaked the identity of a CIA operative in order to discredit a political opponent. (Remember Bush’s promise to fire anyone involved?) This is the president that claims “we don’t torture,” then fights to retain his prerogative to torture. When forced by political fallout to sign a law outlawing said torture, he issues a “signing statement” making clear his intention to ignore the law when he feels like it. Potential appointees to scientific panels are asked whether they voted for President Bush. Regulations on environmental and occupational safety that the administration finds distasteful lie fallow and unenforced. Treaties signed by the United States are derided as “quaint,” then cast aside. When the Government Accountability Office issues a ruling that the administration’s use of phony “video news releases” purporting to be real news constitutes “covert propaganda” and is therefore illegal, the White House simply ignores them and continues the propaganda campaign.

Offices like the GAO—what with its mission of government accountability and all—are considered by the White House to be simply irrelevant. As the Los Angeles Times pointed out in a recent editorial, during the 1990s Republicans and the media excoriated Janet Reno for not being “independent” enough of the Clinton White House because she appointed only seven independent counsels. Today the idea that Alberto Gonzales might exercise any shred of independence from George W. Bush is so ridiculous no one even bothers to suggest he should.

None of this would be possible were there a Congress willing to assert its constitutional power and raise from its hibernation that slumbering beast known as “oversight.” But though one-party control of both ends of Pennsylvania Avenue may be a necessary condition of success in the endeavor to render law inoperative, it is not sufficient. What is required is a congressional majority that will put party over country, that will willingly abdicate its duties and obligations, that will look the other way when the law is broken, that will take its integrity and its spine and its sense of shame, seal them carefully in a small brown envelope and shove them deep into the bottom desk drawer, to be removed only in the event of the most dire crisis of political self-preservation. Fortunately for the Bush administration, they are the proud owners of just such a Congress.

Looking back on the Clinton years, the contrast makes one’s head spin. As The Boston Globe pointed out last November, a House committee took 140 hours of sworn testimony in the national crisis that was the question of whether the Clinton administration used the White House Christmas list to troll for potential donors. Hours of testimony the House took on the torture at Abu Ghraib, a scandal that did untold damage to America’s moral standing in the world and fight against terrorism? Twelve.

The administration has offered as its blanket defense to the charge of law-breaking an updated version of Richard Nixon’s “When the president does it, that means it’s not illegal.” George W. Bush’s authority as commander in chief of the armed forces, they tell us, means that he can ignore any law he pleases if he finds some connection to national security. In the case of Jose Padilla, they argued that the president has the sole discretion to decide who is an “enemy combatant,” and if he so chooses he can have an American citizen seized in Chicago and thrown into prison for life with no trial. If he finds the FISA law inconvenient or outdated, he is under no obligation to come to the legislative branch to change the law; he can simply choose to ignore it. As Bush explained, “The FISA law was written in 1978. We’re having the discussion in 2006. It’s a different world.” Indeed.

Or to take an example that has not yet occurred, if Bush decides that Nancy Pelosi’s criticisms of him are impeding his War on Terror, he could invite her to the White House, bring her out to the South Lawn, and shoot her in the head. After all, it’s a matter of national security—and that means he decides what’s illegal and what isn’t.

Of course, he would never do such a thing, right? But a democracy does not depend on the good will and good sense of its leaders to constrain such behavior. It depends on the rule of law—laws from which no one is immune no matter what office he holds.

Despite the steadily increasing dismay of the American people as they suffer the fruits of Republican rule, it seems unlikely that anyone in this administration will pay any real price for their assault on the very idea that we are a nation of laws. One might have imagined that the lawyers and judges who populate the government, regardless of their party affiliation, would rise up in protest. But save for a brave few, they have not; indeed, those with the greatest willingness to cast the Constitution into the trash have found themselves rewarded with promotion and the attention of high officials, their ideas greeted with nodding heads in the Oval Office. Some have been granted lifetime appointments to the federal bench.

Should a Democrat win the White House in 2008, no doubt many conservative proponents of the theory of autocracy known as the “unitary executive” will awaken as from a dream, and revert to the belief that unlimited power vested in the hands of a president might not be quite compatible with our democratic heritage. Or perhaps not—perhaps their belief in the president’s absolute authority really is about principle, and not just about power. That would be even more frightening.