McCain and the 'Unitary Executive'
by Robert Parry
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,” 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.]
'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 homosexual 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 homosexual 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 supporters 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 supporters 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?
Robert Parry broke many of the Iran-Contra
stories in the 1980s for the Associated Press and Newsweek. His latest
book, Neck Deep: The Disastrous Presidency of George W. Bush, was
written with two of his sons, Sam and Nat, and can be ordered at
neckdeepbook.com. His two previous books, Secrecy & Privilege: The
Rise of the Bush Dynasty from Watergate to Iraq and Lost History:
Contras, Cocaine, the Press & 'Project Truth' are also available
there. Or go to Amazon.com.
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