McCain and the 'Unitary Executive'
By Robert Parry
Created May 13 2008 - 12:07pm
If John McCain wins the presidency - and gets to appoint one or more U.S.
Supreme Court justices - America's 220-year experiment as a democratic
Republic living under the principle that "no man is above the law" may
come
to an end.
To put the matter differently, if a President McCain replaces one of the
moderate justices with another Samuel Alito - as McCain has vowed to do -
then Justice Department lawyer John Yoo's extreme vision of an
all-powerful
Executive could well become the new law of the land.
On May 6 in Winston-Salem, North Carolina, during a speech aimed at
appeasing conservatives, McCain promised to appoint justices in the mold
of
George W. Bush's selections, Justice Alito and Chief Justice John Roberts,
expanding the court's right-wing faction that also includes Justices
Antonin
Scalia and Clarence Thomas.
Those four justices already have embraced the Bush administration's
radical
notion that at a time of war - even one as vaguely defined as the "war on
terror" - the President possesses "plenary" or unlimited powers through
his
commander-in-chief authority.
As expressed in classified memos by Yoo when he was a key lawyer in the
Justice Department's Office of Legal Counsel, there should be, in essence,
no limits on what a war-time President can do as long as he is asserting
his
duty to protect the nation.
Alito also is associated with this concept of a "unitary executive [1],"
holding that a President should control all regulatory authority, define
the
limits of laws via "signing statements" and - at his own discretion -
override treaties, the will of Congress and even the Bill of Rights and
the
Constitution.
Under this theory, a President can cite his commander-in-chief powers to
spy
on citizens without warrants, imprison people without charges, authorize
torture, order assassinations, and invade other countries without
congressional approval.
With just one more Alito, that view would claim control of the U.S.
Supreme
Court and allow a new five-to-four majority to, in effect, rewrite the
Constitution. The founding principle of the United States - that everyone
possesses certain "unalienable" human rights - would be history. [For
details, see Neck Deep: The Disastrous Presidency of George W. Bush [2].]
'Activist' Judges
All this would occur under the right-wing assertion that McCain was
appointing justices who "strictly interpret" the Constitution. It has been
a
long-held tenet of the conservative movement that "activist" judges were
at
fault for outlawing racial segregation and other statutes that
discriminated
against minorities.
More recently, the Right has concentrated its wrath on Supreme Court
rulings
that struck down laws criminalizing abortion and homo***ual acts.
But the "strict constructionist" phrase is really a euphemism for a double
standard, objecting to judicial decisions that conservatives don't like
while justifying judicial activism when it serves right-wing causes, such
as
giving President Bush authority to brush aside the Constitution as he
prosecutes the "war on terror."
Even if the clear intent of the Founders was to avoid a tyrannical
Executive
by placing key war-making powers in the hands of the Legislature,
right-wing
legal scholars have favored overturning those principles in the name of an
all-powerful President.
So, on one level, McCain might choose another Alito or two in order to
reverse Roe v. Wade or allow states to crack down on homo***ual rights.
But
he also would be enshrining the concept of a "unitary executive."
Thus, perhaps more than any other question, the November election will
settle whether a future Supreme Court will reshape the United States into
an
imperial system both at home and abroad - or roll back President Bush's
expansion of executive power in the direction of the Founders' original
vision.
Obama-Clinton Battle
There is also a political component on the Democratic side to McCain's May
6
promise to Republicans that he will help the Right consolidate control of
the federal judiciary, including the Supreme Court.
While many sup****ters of Hillary Clinton - especially middle-age white
women - have told pollsters that they won't vote for Barack Obama if he
wins
the Democratic nomination, that position might ensure that a core feminist
principle, "reproductive rights," will be struck down by the Supreme
Court.
In other words, to show their anger over the defeat of a female
presidential
candidate, Clinton sup****ters might end up contributing to a historic
defeat
for feminist rights, including the possible outlawing of abortions in many
states.
However, beyond the issue of abortion and other privacy rights, Democrats
and all Americans will be faced with a fundamental question when they vote
in November:
Will they continue the noble experiment of a democratic Republic with
"unalienable" rights for all, what the Founders envisioned with the
Declaration of Independence in 1776 and the Constitution of 1787?
Or, do Americans want to go down the path marked by the likes of Yoo,
Alito
and Bush - ceding virtually all power to one individual who can operate
beyond all laws and outside the rules of human behavior - and do so with
the
blessing of the U.S. Supreme Court?
--
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"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an op****tunity of winning
back the principles we have lost, for this is a game where principles are
at
stake."
-Thomas Jefferson
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