OUR VERY ONE ENABLING ACT ?

Under the US Constitution, the president’s role is to “… take care that the laws be faithfully executed.” The President does not make the laws, Congress has that power. The President does not interpret the laws, that responsibility is the purview of the judiciary. Thomas Paine wrote in Common Sense:

“ In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”

The Unitary Executive Doctrine, now fully embraced and exploited by President Bush, conflicts with Paine's principle which is fundamental to our constitutional system. If Bush can ignore or evade laws, then the law is no longer king. It is also relevant to keep in mind that the Colonial Legislature, as well as the people basking in their newly won Independence, wanted to make General George Washington an “Emperor” or President for life. He was the first to discount this, but graciously agreed to be the Republic’s first limited-term President. Washington and his peers carefully constructed a country of laws. If we are to maintain this honored tradition, we need to decide whether a President -- who has determined to ignore or evade the law -- has not acted in a manner contrary to his trust as President and subversive to our constitutional government.

Hitler's Enabling Act

On March 23, 1933, the newly elected members of the German Parliament (the Reichstag) met in the Kroll Opera House in Berlin to consider passing Hitler's Enabling Act. It was officially called the “Law for Removing the Distress of the People and the Reich.” If passed, it would effectively mean the end of democracy in Germany and establish the legal dictatorship of Adolf Hitler.

The “distress” had been secretly caused by the Nazis themselves in order to create a crisis atmosphere that would make the law seem necessary to restore order. On February 27, 1933, they had burned the Reichstag building, seat of the German government, causing panic and outrage. The Nazis successfully blamed the fire on the Communists and claimed it marked the beginning of a widespread uprising.

The Act was envisioned as the mechanism to circumvent the Reichstag by granting the chancellor and his cabinet authority to enact legislation without the Reichstag. . .

He also promised an end to unemployment and pledged to promote peace with France, Great Britain and the Soviet Union. But in order to do all this, Hitler said, he first needed the Enabling Act.

At Hitler's first post-election Cabinet meeting, the first order of business was to plan how to obtain absolute power in a constitutional way. Hitler decided upon enacting the proposed "enabling act" that would give the cabinet legislative power for four years. The Reichstag Fire Decree had already given the government the power to arrest opposition delegates, and Hitler felt certain that he could convince the Christian Catholic Center to give their support to the act and provide the needed two-thirds majority.

Just before the vote, Hitler made a speech to the Reichstag in which he pledged to use restraint. "The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures ...The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one." - Hitler told the Reichstag.

Hitler's speech, which emphasized the importance of Christianity in German culture, was aimed particularly at assuaging the Centre Party's sensibilities. How the Third Reich utilized the Enabling Act burned a black hole in the middle of the 20th Century.


Bush’s Unitary Executive

It is genuine concern that motivates paralleling the Reich’s Enabling Act with the current Unitary Executive Doctrine. Perhaps resonating to the spirit of the Enabling Act, the Bush Administration’s claim that it has the authority to decide what is or is not the law is most manifest in its decision not to apply the Geneva Conventions to certain persons. A 2003 memo on torture written by Department of Defense lawyers stated that “criminal statutes are not read as infringing on the president’s ultimate authority” as commander-in-chief, and prohibitions on torture “must be construed as inapplicable to interrogations.”

White House Counsel Alberto Gonzales wrote in 2002 that the Geneva Conventions were “obsolete” and “quaint” and argued that Bush had the constitutional authority to determine that Geneva did not apply to al Qaeda or the Taliban.

Charles Gittings, founder of the Project to Enforce the Geneva Conventions, asserts that the President’s decision not to apply Geneva, or to apply it selectively, is a grave breach of the Convention and thus a violation of the War Crimes Act of 1996. “The President has no Constitutional authority to commit crimes,” he said.

It is critical to secure the proper perspective in framing this argument as to the legal efficacy of the Unitary Executive. Simply, is this Doctrine of unilateral executive power consistent with our Constitutional Republic of distinct governmental separations? Can our government remain true to its nature, yet also embrace this doctrine?

Judge Samuel Alito, Bush's nominee for the Supreme Court, has attested that he believes in the unitary executive. The most recent and blatant presidential intrusions on the law and Constitution (e.g., ignoring the FISA Laws) supply the verse to a very uncomfortable refrain.

Signing Statements

It is clear that the phrase "unitary executive" is a code word for a doctrine that favors the ever-expanding inflation of nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.

President Bush has used presidential signing statements more than any previous president. From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times. It is important, therefore, to understand what this doctrine means.

According to Dr. Christopher S. Kelley, professor of political science at the Miami University at Oxford, Ohio, the unitary executive doctrine arose as the result of the twin circumstances of Vietnam and Watergate. Kelley asserts that "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," which resulted in a congressional assault on presidential prerogatives.

For example, consider the Foreign Intelligence Surveillance Act (FISA) which Bush evaded when authorizing the NSA to tap without warrants -- even those issued by the FISA court. FISA was enacted after the fall of Nixon with the precise intention of curbing unchecked executive branch surveillance. (Indeed, Nixon's improper use of domestic surveillance was included in Article 2 paragraph (2) of the impeachment articles against him.)

According to Kelley, these congressional limits on the presidency, in turn, led "some very creative people" in the White House and the Department of Justice's Office of Legal Counsel (OLC) to fight back, in an attempt to foil or blunt these limits. In their view, these laws were legislative attempts to strip the president of his rightful powers.


The unitary executive doctrine arises out of a theory called "departmentalism” or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.


Bush's Signing Statement for the McCain Anti-Torture Bill

In his most recent signing statement, Bush asserts not only his authority to internally supervise the "unitary executive branch," but also his power as Commander-in-Chief, as the basis for his interpretation of the law -- which observers have noted allows Bush to create a loophole to permit the use of torture when he wants.

Clearly, Bush believes he can ignore the intentions of Congress and by proxy, we the people. Not only that, but by this statement he has revealed his intent to do so, if he so chooses.

On top of this, Bush asserts that the law must be consistent with "constitutional limitations on judicial power." But what about presidential power? Does Bush see any constitutional or statutory limitations on that? And does this mean that Bush will ignore the courts, too, if he chooses - as he attempted, recently, to do in the Padilla case?


Does The Unitary Executive Doctrine Violates the Separation of Powers?

As Findlaw columnist Edward Lazarus recently showed, the President does not have unlimited executive authority, not even as Commander-in-Chief of the military. Our government was purposely created with power split between three branches, not concentrated in one.

Separation of powers, then, is not simply a talisman: It is the foundation of our system. James Madison wrote in The Federalist Papers, No. 47, that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The most effectual guard which has yet been discovered against the abuse of power, is the division of it. It is indeed our blessing to have a constitution which contains within it a sufficient limitation to the power granted by it, and also a proper division of that power. But no constitution affords any real security to liberty unless it is considered as sacred and preserved inviolate; because that security can only arise from an actual and not from a pretense of limitation and division of power.

Yet it seems that a pseudo limitation and division of power - with real power concentrated solely in the "unitary executive" - is exactly what President Bush seeks. His signing statements make the point quite clearly, and his overt refusal to follow the laws illustrates that point. In Bush's view, there is no actual limitation or division of power; it all resides in the executive.

And for this, we should take pause. History periodically provides the opportunity to reassess past failings with current knowledge. If we yet again repeat the previous inactions and distract ourselves from the gravity of this scenario, we may well be faced with a collective reprobation that future generations will be unable to comprehend or justify.