Thursday, 4 August 2011

UNITARY EXECUTIVE THEORY - is the US Authoritarian?

I agree with Alan Levine that the 'checks and balances' system (division and separation of branches) is one of the best features of the US Constitution designed to prevent concentration of power similar to what the mother country suffered before the Glorious Revolution. The question, however, is whether presidents throughout history have attempted to make the executive branch an 'imperial presidency' that goes beyond what the framers envisioned, and the degree to which recent presidents have succeeded. 

Arthur M. Schlesinger's "The Imperial Presidency" (1973) provided a sound Liberal critique mainly of how it has been possible by presidents (Nixon at the time Schlesinger was writing) to bend the Constitution and manipulate power in favor of the executive and at the expense of the other branches. Schlesinger's "imperial presidency theory" (a phenomenon that can be traced to Andrew Jackson) is now used interchangeably with the "unitary executive theory". Scholars usually associate the 'unitary executive theory' with Bush, although both Republican and Democrat presidents fit under this model, and the use of the new label is designed to make imperial presidency more 'Constitutionally-sounding' to the public.

In the past three decades, especially under George W. Bush, the 'unitary executive theory' has been used to justify added powers of the executive branch, particularly after 1996 when Congress passed the Line-Item Veto Act. In short, the concerns that Schlesinger outlined almost four decades ago are not only alive and well today, but the executive branch has become more imperial than it was under Nixon who ultimately fell owing to abuse of power. The rise of the imperial presidency has been possible, in part, because the executive branch enjoys political (partisan) support from the judiciary and congress. Therefore, the theory of division and separation can translate into a reality of 'consensus politics' or 'emergency conditions' under an 'imperial presidency' that defines 'national interest'.

After 9/11, the executive branch became more imperial than at any time in history, as evidenced not only by 'Line Item Veto' but also by the McCain Detainee Amendment (legalizing use of torture) designed to protect citizens against terrorism, the USA Patriot Act, and NSA surveillance without a warrant as stipulated by the Federal Intelligence Surveillance Act of 1978. Spying on US citizens became legal as was torture of 'terror detainees' denied due process. All of this was carried out in the name of the unitary executive theory justified by 'the threat of terrorism' and an evolving political mindset that democracy can only be safe if it operates under quasi-martial law.

As I have pointed out on numerous occasions in the past, the US has become less democratic and more authoritarian, while the media fully justify this curious evolution of American 'democracy' and the public appear for the most part to remain docile. Meanwhile, the executive branch justifies police-state methods that violate the civil liberties and rights of citizens because of the 'war on terrorism'. Not only did the Bush administration argue that the framers of the Constitution intended for the executive to have 'boundless powers' as commander-in-chief, but President Bush invoked 'unitary executive theory' more than 100 times, including to deny certain vital information to Congress, and to protect Cheney's Energy Task Force activities designed to exclude environmental scientists from the process, and to cater to the energy industry in which the vice president had investments. Halliburton, Exxon-Mobil, Chevron-Texaco, Conoco-Phillips, and other energy executives met with Cheney's Energy Task Force to plan the post-war revival of Iraq's oil industry.

'Unitary executive theory' served not only to justify the added powers of the executive and dilute the process of checks and balances, but also to line pocketbooks of administration officials with ties to the energy sector that made billions of dollars in the last decade, while the American people were left with a bill of an estimated $1 trillion for the wars in Iraq and Afghanistan. But then, it was all worth it to fight the endless 'war on terrorism' that must be won!

During the early Cold War, the 'peddlers of crisis' from both political camps argued in favor of a strong executive branch because the 'Russian bear' threatened America's 'freedom and democracy', and by extension the threat extended to entire 'free (pro-US) world' that the US deemed under its umbrella of military protection directly or through alliances. The early Cold War justified denying civil rights to blacks and women until the civil rights movement and feminist movement exploded in the 1960s. Today, 'unitary executive theory' justifies an imperial presidency because of the 'war on terrorism' that potentially can cover any individual, group or country that the executive labels 'terrorist' - and the US has the influence to persuade many other countries to go along -usually, as long as they too declare their own 'war on terrorism' on their enemies.

The Founding Fathers, especially James Madison, were well aware that the executive branch would strengthen considerably in time of war, exactly as the case has been throughout history when wars have taken place. The question, however, is whether the framers of the Constitution intend for the president to become an imperial commander-in-chief that bypasses the other two branches of government in essential matters of public policy.

Would the framers approve of a permanent state of war such as the 'war on terror' that is now institutionalized, thus strengthening the executive branch on a permanent basis and violating the balance of power in government? Would the framers intend for the executive to use the office of the presidency as a vehicle to violate civil liberties and dilute the democratic process; to strengthen capital in general or certain companies that give generously to candidates at the expense of the entire social fabric; to invoke the 'unitary executive theory' in order to weaken environmental laws and strengthen oil companies; to weaken and usurp the functions of the other two branches of government; all of it in the name of 'national security' as the executive branch defines the term!

Given the massive concentration of power in the executive branch, given the 'war on terrorism' that has eroded civil liberties even as the 'Obama conceded' during the primary season in 2008, the social fabric rooted in pluralism and (18th century-style bourgeois) democracy, to what degree is the US a less authoritarian country than France that 'Freedom' lists as one of the 25 nations becoming less democratic in 2010? Not that France is a model democracy today - President Sarkozy illegally expelled gypsies in 2010 and he has been accused of condoning authoritarian regimes.

But how does the US compare with France, or any EU member in the last decade, using the exact same criteria on civil liberties and constitutional guarantees? Is any EU member as authoritarian as the US, or is the US operating under 'unitary executive theory' much closer to regimes like Venezuela under Hugo Chavez whose policies are at least intended to prevent capital concentration and to be more benevolent toward the lower strata of society? Finally, would the framers of the Constitution approve of the US government today, or would they consider revising if not re-writing the Constitution to serve all citizens?

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