Homeland Security Presidential Directive:
an Unconstitutional Bombshell
by Prof. Marjorie Cohn
Friday June 1, 2007
As the nation focused on whether Congress would exercise its
constitutional duty to cut funding for the war, Bush quietly
issued an unconstitutional bombshell that went virtually
unnoticed by the corporate media.
The National Security and Homeland Security Presidential Directive,
signed on May 9, 2007, would place all governmental power in
the hands of the President and effectively abolish the checks
and balances in the Constitution.
If a "catastrophic emergency" - which could include
a terrorist attack or a natural disaster - occurs, Bush's new
directive says: "The President shall lead the activities
of the Federal Government for ensuring constitutional government."
What about the other two co-equal branches of government?
The directive throws them a bone by speaking of a "cooperative
effort" among the three branches, "coordinated by
the President, as a matter of comity with respect to the legislative
and judicial branches and with proper respect for the constitutional
separation of powers." The Vice-President would help to
implement the plans.
"Comity," however, means courtesy, and the President
would decide what kind of respect for the other two branches
of government would be "proper." This Presidential
Directive is a blatant power grab by Bush to institutionalize "the
unitary executive."
A seemingly innocuous phrase, the unitary executive theory
actually represents a radical, ultra rightwing interpretation
of the powers of the presidency. Championed by the conservative
Federalist Society, the unitary executive doctrine gathers
all power in the hands of the President and insulates him from
any oversight by the congressional or judicial branches.
In a November 2000 speech to the Federalist Society, then
Judge Samuel Alito said the Constitution "makes the president
the head of the executive branch, but it does more than that.
The president has not just some executive powers, but the executive
power -- the whole thing."
These "unitarians" claim that all federal agencies,
even those constitutionally created by Congress, are beholden
to the Chief Executive, that is, the President. This means
that Bush could disband agencies like the Federal Communications
Commission, the Food and Drug Administration, the Federal Reserve
Board, etc., if they weren't to his liking.
Indeed, Bush signed an executive order stating that each federal
agency must have a regulatory policy office run by a political
appointee. Consumer advocates were concerned that this directive
was aimed at weakening the Environmental Protection Agency
and the Occupational Safety and Health Administration. The
unitary executive dogma represents audacious presidential overreaching
into the constitutional province of the other two branches
of government.
This doctrine took shape within the Bush administration shortly
after 9/11. On September 25, 2001, former deputy assistant
attorney general John Yoo used the words "unitary executive" in
a memo he wrote for the White House: "The centralization
of authority in the president alone is particularly crucial
in matters of national defense, war, and foreign policy, where
a unitary executive can evaluate threats, consider policy choices,
and mobilize national resources with a speed and energy that
is far superior to any other branch." Six weeks later,
Bush began using that phrase in his signing statements.
As of December 22, 2006, Bush had used the words "unitary
executive" 145 times in his signing statements and executive
orders. Yoo, one of the chief architects of Bush's doctrine
of unfettered executive power, wrote memoranda advising Bush
that because he was commander in chief, he could make war any
time he thought there was a threat, and he didn't have to comply
with the Geneva Conventions.
In a 2005 debate with Notre Dame professor Doug Cassel, Yoo
argued there is no law that could prevent the President from
ordering that a young child of a suspect in custody be tortured,
even by crushing the child's testicles.
The unitary executive theory has already cropped up in Supreme
Court opinions. In his lone dissent in Hamdi v. Rumsfeld, Justice
Clarence Thomas cited "the structural advantages of a
unitary Executive." He disagreed with the Court that due
process demands an American citizen held in the United States
as an enemy combatant be given a meaningful opportunity to
contest the factual basis for that detention before a neutral
decision maker. Thomas wrote, "Congress, to be sure, has
a substantial and essential role in both foreign affairs and
national security. But it is crucial to recognize that judicial
interference in these domains destroys the purpose of vesting
primary responsibility in a unitary Executive."
Justice Thomas's theory fails to recognize why our Constitution
provides for three co-equal branches of government.
In 1926, Justice Louis Brandeis explained the constitutional
role of the separation of powers. He wrote, "The doctrine
of the separation of powers was adopted by the convention of
1787 not to promote efficiency but to preclude the exercise
of arbitrary power. The purpose was not to avoid friction,
but, by means of the inevitable friction incident to the distribution
of the governmental powers among three departments, to save
the people from autocracy."
Eighty years later, noted conservative Grover Norquist, describing
the unitary executive theory, echoed Brandeis's sentiment.
Norquist said, "you don't have a constitution; you have
a king."
One wonders what Bush & Co. are setting up with the new
Presidential Directive. What if, heaven forbid, some sort of
catastrophic event were to occur just before the 2008 election?
Bush could use this directive to suspend the election. This
administration has gone to great lengths to remain in Iraq
. It has built huge permanent military bases and pushed to
privatize Iraq 's oil. Bush and Cheney may be unwilling to
relinquish power to a successor administration.
Marjorie Cohn is a professor at Thomas Jefferson School of
Law and president of the National Lawyers Guild. Her new
book, Cowboy Republic: Six Ways the Bush Gang Has Defied
the Law, will be published in July. See http://www.marjoriecohn.com.
Marjorie Cohn is a frequent contributor to Global Research.
Global Research Articles by Marjorie Cohn
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