Convención para la Salvaguardia del Patrimonio Cultural Inmaterial de 2003

One of the inherent difficulties in studying the use of presidential powers is the nearly monolithic role played by constitutional thought and critique that surrounds it. For the purposes of this project, which seeks to provide an alternative approach that can work symbiotically with a constitutional critique of presidential powers but is not reliant on comparison to the Constitution in order to explain presidential action, this line of thinking creates a barrier that must be specifically situated. Disavowing the typical role afforded to the Constitution as an objective external measure of the legitimacy of presidential action, this analysis foregrounds the role the Constitution plays in constructing the institutional facts that animate the articulations of presidential powers.

The theory that has organized these institutional facts to guide Presidents Bush and Obama toward the expansive use of presidential powers evident in the terror wars has come to be titled Unitary Executive Theory (UET). This mode of constitutional thought has been a core part of conservative political thought in the United States since at least the Reagan administration. One of the better academic defenses of the use of this theory under the George W. Bush administration is provided by Stephen Knott. In Knott’s view UET is a theory that has no partisan home, it lends itself as well to presidents from the Democratic Party as it does to Republican Party presidents (5).⁵² Indeed, although Obama has taken a stance against an expansive presidency, he has quietly continued to

52 Knott, Stephen F. Rush to Judgment: George W. Bush, The War on Terror, and His Critics (Lawrence, University Press of Kansas, 2012), 5.

use it as a “lite brand (83).”⁵³ Knott argues that what was remarkable was not the powers Bush used but instead the political conditions, including congressional meddling, an assertive judiciary, and Bush’s inability to articulate (in Knott’s case both literally and figuratively) a compelling defense of these powers that resulted in their unpopularity and the critical attention they have garnered (92-93).⁵⁴

Despite this critical attention, non academic audiences could be excused for being somewhat unfamiliar with the title and its meaning, as it does not itself constitute a commonsense understanding of the Constitution, but instead is a particular interpretation that in substantial ways oversteps the normal understandings of the executive branch.

The most straightforward explanation of the theory comes from Rudalevige who writes,

“unitary executive theory, most basically, posits that the executive power vested in the president cannot be infringed upon by other political actors (250).”⁵⁵ The sticking point, as Rudalevige points out, is just how far the authority for the executive really extends.

As my analysis will demonstrate, the Bush administration generally saw this authority as essentially boundless, while the Obama administration had a generally more restricted approach that, nonetheless, participated in the same practices.

This expansive definition has found its own justification in both academic and political contexts. The contemporary expansive view of executive power is rooted in a particular interpretive approach to the Constitution. Supreme Court Justice Antonin Scalia argued that an originalist interpretation would be grounded in concepts familiar to

53 Knott, Rush to Judgment: George W. Bush, The War on Terror, and His Critics, 83.

54 Knott, Rush to Judgment: George W. Bush, The War on Terror, and His Critics, 92-93.

55 Rudalevidge, Andrew. “George W. Bush and the Imperial Presidency,” in Testing the Limits: George W.

Bush and the Imperial Presidency (Plymouth: Rowman and Littlefield Publishers, 2009), 243-261.

how the framers of the Constitution would have intended that section to be interpreted.

In this case, all the powers reserved for the King in the British system would also be reserved for the President, as the British system was responsible for framing how Executive powers were understood (858-860).⁵⁶ The hermeneutic approach taken by originalists lends itself to a very expansive view of executive powers, including the ability to make war without any control or restriction from Congress.

This distinctive approach to interpreting the Constitution has had significant support in unlikely places. As noted by Vanessa Beasley, this interpretation has gained support in unlikely places because of the expediency for many Presidents in avoiding Congress (13-14).⁵⁷ The expansive view of the executive branch, although not unrelated to claims that expanded Presidential power dated to the New Deal era, gained new life under the Reagan administration in memoranda written by the Reagan administration lawyers. As Amanda Hollis-Brusky notes, this definition was rearticulated and most clearly described by Executive branch lawyers of the Bush Administration, Deputy Assistant Attorney General John C. Yoo who argued that the Executive was obligated to maintain unity of purpose especially in the face of a global terrorist threat (197-198).⁵⁸ This unity could only be sustained if the Executive had the ability to compel all branches of the government and the military to function in a synchronized manner.

56 Scalia, Antonin. “Originalism: The Lesser Evil.” University of Cincinnati Law Review 57, no. 849 (1989):

858-860.

57 Beasley, Vanessa. “The Rhetorical Presidency Meets the Unitary Executive: Implications for Presidential Rehtoric on Public Policy,” Rhetoric & Public Affairs 13, no. 1, (2010): 13-14.

58 Hollis-Brusky, Amanda. “Helping Ideas Have Consequences: Political and Intellectual Investment in the Unitary Executive Theory, 1981-200.” Denver University Law Review 89, no. 1, (2012): 197-198.

In his article “War and the Constitutional Text,” Yoo argues in particular that all war powers should reside in the Presidency and should not be subject to any restraints imposed by other branches (1).⁵⁹ Yoo holds that those adopting the “pro-Congress”

position, that the Executive war powers should be subject to checks and oversight by Congress, rely on historically inaccurate analysis of the intent of the framers of the Constitution, which has produced a fatal flaw in rejecting a more expansive vision of the war powers given to the President under Article II of the U.S. Constitution (22-23).⁶⁰ To the extent that Yoo is willing to grant Congress any check on the war-making capacity of the President, it is through the power of the purse (37).⁶¹ In this way Congress is able to restrict unpopular wars, without interfering ultimately with the ability of the President to make decisions, which Yoo considers crucial to the framework for how the United States conducts its foreign policy (38).⁶² This decision-making framework, Yoo argues, is necessary in order to respond to the contemporary threats posed by terrorism, which demand that the President be able to respond quickly and effectively to perceived threats (41).⁶³ This emphasis on unity and expansive executive decision-making is significant, as it creates an enthymematic belief that the Executive embodies and represents the whole of government, rather than a branch with limited powers.

Within the literature defending UET there is a persistent return to the text of the Constitution as justification for the theory, but the arguments made for the desirability of the theory do not correspond to the reliance on the Constitution as a justification. Knott’s

59 Yoo, John C. “War and the Constitutional Text.” University of Chicago Law Review 69, (2002): 1.

60 Yoo, “War and the Constitutional Text,” 22-23.

61 Yoo, “War and the Constitutional Text,” 37.

62 Yoo, “War and the Constitutional Text,” 38.

63 Yoo, “War and the Constitutional Text,” 41,

argument stems from a need to correct perceived historic errors through the assertion of a distinct constitutional theory. Scalia grounds this theory in a limited and partial

understanding of discourses on the Constitution at the time of its founding. Yoo’s argument has as much to do with the technical demands he perceives necessary to fight the War on Terror as it does with a broader constitutional interpretation. What these arguments demonstrate is a tendency to view the Constitution as a document that can provide a rationalization for an ideological commitment to an empowered presidency.

Toward that end, UET is a normative approach to the Constitution that has proved to have deleterious effects for democratic practice.

As understood by the George W. Bush administration UET aspires to the constitutional equivalent of French King Louis XIV’s purported claim “L’etat c’est moi.”⁶⁴ The office of the president is literally conceived of as the state embodied in an individual. It is not merely that the president is the unifier, but that the president embodies the unity of the polity. This broad grant of authority, envisioned by the Bush administration begs comparison to a distinct theoretical insight that moves beyond the question of constitutionalism that will preoccupy much of my analysis.

Although the majority of my analysis in this project seeks to analyze how UET has come to be operationalized, there exists an alternative approach that also animates my criticism of the terror war Presidents. Known as constituent sovereignty, it is in many ways an ideological foil to UET. Discussed at greater length in the conclusion,

64 Rowen, H.H. “’L’etat C’est Moi’: Louis XIV and the State,” French Historical Studies. Vol. 2, no. 1, 1961 pp. 83-93. Attribution of this quote to Louis XIV been rightly problematized due to lack of genuine evidence. Realistically the best interpretation may be Rowen’s claim that Louis XIV believed it even if he did not say it.

constituent sovereignty is the concept that the will of the people constituted by the founding document is the ultimate source of legitimacy by which government action should be measured.

A core argument in my analysis is that in the terror wars, the presidency, as Dana Nelson has argued, has proved to be bad for democracy. The concern in my analysis is that the organization of the institutional facts of the Constitution in UET undermines democratic practices and ignores the role of the constituency in the organization of those facts. As Nelson argues, an over emphasized and over empowered presidency risks reducing democratic practice to the quadrennial act of voting (16-17). Such a model, with its impoverished sense of democracy, has the effect of depoliticizing the population and has contributed to the ongoing character of the terror wars. Of more importance, it has raised the question of the legitimacy of the office of the President when the office has grown so powerful that it no longer reflects a democratic will.

I argue that this is a fundamental error in the constitutional thought that supports UET. It presumes that a constitutional basis is sufficient to justify the actions of the President. Such an approach has led Presidents to exercise extraordinary power and pursue wars that have proved to be disastrous. The means used to pursue these wars have proved ultimately to be anti-democratic, and the consequences are borne out in the legacy of criticism against President Bush that Knott identifies, and whose analysis should also be a blemish on the legacy of the Obama administration.

Sovereignty

One of the profoundly difficult terms to define at the core of political thought both inside and outside of constitutionalism is sovereignty. One of the foundational principles in the way the Constitution is understood relies on the notion that powers are separated.

Problematically, the practice of governance, even in states that rely on democratic and constitutional governance, makes a genuine and immutable separation difficult. In the case of the United States, I argue, there resides an inevitable potential for breaking down this separation spawned from the existence of sovereignty.

As German jurist Carl Schmitt famously defined it, “Sovereign is he who decides on the exception (5).”⁶⁵ This definition in its initial presentation is not prescriptive, but rather describes the way violence is deployed. Sovereign power is responsible for wielding the violence necessary for the maintenance of law. From the outset, Schmitt defines sovereignty as a borderline concept, not that it is vague, but that it is not routine (5).⁶⁶ There is an accepted order that governs the functioning of the state.

Fundamentally this order does not rely on sovereign power. In the main, laws are made and maintained following an order defined by an abstract understanding of sovereignty.

Through this abstract acknowledgment of sovereignty, law is maintained and made without the need of a sovereign (1985, p. 5-7).⁶⁷ The sovereign governs without the need for violence because the juridical order exists.

Sovereign power is demonstrated in creating exceptions to this accepted order. An exception cannot come from outside the order because it would not have the authority to

65 Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. (Cambridge: MIT Press, 1985), 5.

66 Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 5.

67 Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 5-7.

wield sovereign violence. Rather, the sovereign creates exceptions that stand outside of the order. As Schmitt explains, “The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law (6).”⁶⁸ The exception is not a routine power exercised by sovereignty. It is the instantiation of martial law to maintain order or to prepare for conflict.

At this catastrophic point the nature of sovereignty becomes most clear, Schmitt adds:

The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it.

Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety (7).⁶⁹

Schmitt is criticizing the reliance on a constitution to as a means to determine how a crisis should be addressed. In Schmitt’s view a constitution at best can identify who should make the decision to suspend the normal functioning of the government to address the crisis, creating an exception in the normal state of affairs. Thus, the sovereign’s ability to make the decision regarding what constitutes a crisis is necessarily unlimited, and the power to render subsequent decisions about how to address the crisis is similarly unlimited. This vision of sovereignty carries with it two distinct implications. The first is that the power of the sovereign to decide on the exception is remarkably absolute and is

68 Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 6.

69 Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 7.

beholden only to the capricious will of the person who wields the power of the sovereign.

The second is that the ability of the sovereign to exist outside the legal system to be able to suspend and yet be bound to the legal system creates a source of power that is not well accounted for in a system defined primarily by the existence of checks and balances.

The lingering concern is the relationship between sovereignty and violence.

Sovereignty, especially in the context of signing statements, deploys a violence that exists outside of the juridical order. This divine violence should be read, as Schmitt argues, in a secular manner. Violence does not necessarily mean military violence against rebels (although that would certainly qualify), but instead it is violence that suspends the

protections that make the juridical order function. An example, such as the internment of Japanese citizens during World War II, demonstrates the more extreme version of

sovereign violence. However, more subtle forms of violence, such as the executive resisting normal standards for congressional oversight, qualify as well. Divine violence in this context always carries with it the latent threat of real violence, but may not always take that form.

Modern discourses on sovereignty are framed by the tension between Carl Schmitt’s defense of central state power and various criticisms of it. As Agamben has argued, Schmitt’s argument about sovereignty was created in response to the work done by Walter Benjamin (52).⁷⁰ Understanding this debate in simple terms helps to clarify the way sovereignty comes to be defined.

In his early work Benjamin argues that a concept of violence outside of the state is necessary to explain history; violence often originates outside of the state’s normal

70 Agamben, Giorgio. State of Exception (Chicago: University of Chicago Press, 2005), 52.

functioning (281-283).⁷¹ He concludes that despite violence existing outside the law it is always engaged either in making law or in preserving law. These two ways of deploying violence are dialectically opposed with one generally taking precedence over the other (283-286).⁷² These first form of violence is mythic in character. Mythic violence is controlled by people, pernicious, and transitory, a violence used to create interventions to make and sustain an existing law. It is violence borne out of the myth attached to the formation of a polity. This is contrasted with divine violence, which is sovereign and stands above and outside of all other forms of violence (297-298).⁷³ This divine violence that exists outside of the state, either as an extra-legal form of violence carried out by state apparatuses or by illegal violence carried out by non-state actors.

Benjamin’s use of legal contracts is constructive as a way to understand the nature of violence. The violence of law making and sustaining are represented in the legal functioning of a binding contract. By agreeing to and maintaining a contract, both parties are violent in that they foreclose other possibilities. However, there exists a divine violence that lies outside the contract, which is what allows for a contract to be dissolved when it no longer serves its intended purpose (286-288).⁷⁴

As Agamben points out, Carl Schmitt’s reply is an attempt to place this divine violence inside the juridical order (54).⁷⁵ As Benjamin places sovereign violence outside of law as the way a divine violence asserts order with no tie to law, Schmitt wants to

71 Benjamin, Walter. Reflections: Essays, Aphorisms, Autobiographical Writings. Ed. E. F. N. Jephcott, and Peter Demetz (San Diego: Harcourt Brace Jovanovich Publishers, 1978), 281-283.

72 Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings, 283-286.

73 Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings, 297-298.

74 Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings, 286-288.

75 Agamben, State of Exception, 54.

explain this same violence as a tool of sovereignty that operates inside a juridical order.

This prompts Schmitt to create the notion of violence as something that is inside the order while simultaneously outside of it.

Schmitt begins his reply to Benjamin by making clear the technique Benjamin uses to describe violence. In Political Theology, Schmitt makes the bold claim that all modern political thought is secularized theology. This clarifies the discussion offered by Benjamin of sovereignty. The decision to associate sovereign violence with the divine is deliberately intended to create an analogy between the sovereign and divine power.

Enumerating two important characteristics of this analogy clarifies the applicability of Benjamin’s definition, and Schmitt’s modification of it.

The first characteristic Schmitt points to is the unitary nature of the divine, which is transcribed onto the sovereign by Benjamin. This unitary view makes clear that the sovereign is inherently undemocratic in this view because there is no space for opposition

The first characteristic Schmitt points to is the unitary nature of the divine, which is transcribed onto the sovereign by Benjamin. This unitary view makes clear that the sovereign is inherently undemocratic in this view because there is no space for opposition