CT Blue

I marked a birthday recently (too old to celebrate) and my son gave me a copy of Takeover, The Return of the Imperial Presidency and the Subversion of American Democracy, by Charlie Savage. I just finished reading it.

I found this book to be a bit of a tough slog. It’s a little bit like being hit over the head by a baseball bat over and over. You really have to take a break every once in a while. Savage documents the Cheney (for it truly is Cheney’s administration, as Savage documents it) plan to subvert the constitution and install an elected dictatorship.

There’s nothing in this book that anyone addicted to the blogs has not read about before. It’s just that it comes at you in concentrated doses, alternately inducing rage and nausea. It’s a bit like Bush’s greatest Hits:

The Unitary Presidency

Up-front announcements that the president is above the law, to which a supine Congress acquiesced.

Have I missed anything? Absolutely. Read the book.

The constitution depends on a lot of things to function. The founders expected that each of the three branches would be jealous if its constitutional function and resist any attempts by the other branches to transgress. The constitutional system also assumes that the various actors would, despite their tendency to push the envelope to enlarge their own power, acknowledge some limits on their own actions. Cheney and his minions acknowledged no limits, and the Republicans who controlled Congress were fixated on maintaining Republican hegemony to the exclusion of maintaining Congressional power. Moreover, the judiciary had, by Reagan and the first Bush, and more enthusiastically by this Bush, been salted with judges who advocated an expansive view of presidential power.

Savage does an excellent job of telling the entire story. As he points out, once a constitutional principle has been abandoned, it’s hard to recover it. It will be far more difficult for Congress to recover its constitutional prerogatives, than it would have been to protect them in the first place. One can’t read this book without coming to the conclusion that Congress’ failure to impeach Bush may well have spelled the end to the American Republic.

The only hope we have to recover, it seems to me, is if Obama is elected president. I don’t say that because I think Obama will restrain himself from Bush-like excess, though he may to a certain extent. I say it because, in the short run, only the courts can stop the presidential march toward absolute power. This will never happen while a Republican is in the White House. But it’s clear that the “unitary executive” theory is one adopted by conservatives to justify near dictatorial actions by one of their own. Savage points out, for instance that John Yoo, unitary executive proponent par excellence, felt differently when it was Bill Clinton who was doing the stretching. (page 67 in Savage’s book). My own reading is that these people are not process oriented, though they claim to be. They are results oriented. Presidential power should be enhanced, so long as it is exercised by a Republican. I am certain beyond a reasonable doubt that the unitary executive theory will die a quick death once these judges are faced with a Democratic president who uses even a mild version of the Bush tactics to advance his agenda. We can expect the Republican courts to put the brakes on Obama, should he be elected, at every turn. Despite the frustration that this may cause to progressives, it will be a good thing if those precedents remain in place to frustrate the next George Bush. But unless Obama can salt the judiciary, and especially the Supreme Court, with responsible jurists, that won’t happen. The judicial opinions that rein in Obama might as well end with “This opinion is only operative while a Democrat is President”, because if and when the Republicans return to power, the courts will again back off. That is one of the truly pernicious aspects of this “legal” theory. It is an unstated tenet of those that push it that it applies only when a Republican is president. Thus we will alternate between near dictatorial Republican presidents, propped up by both the courts and the corporate press, and weakened Democrats, who will face resistance from both those quarters.

Consider, for instance, the career arc of Judge John Bates, who made a living in the nineties litigating against Bill Clinton, who has now, since being put on the bench by George W. Bush, run interference against any and all attempts to call a judicial halt to the Bush-Cheney crime spree. He was, by the way, appointed to the FISA court by Republican president loving chief Justice John Roberts. Shortly after that appointment one of the FISA judges (don’t you wonder who) ruled that Bush could continue his illegal domestic spying program. There is no reason to believe that Bates would be similarly deferential to a President Obama. The same can be said for Alito, Roberts, and the rest of the unitary executive gang. They will suddenly discover the limits of presidential power should Obama be elected, as will the press, which has, with honorable exceptions like Savage, found nothing to complain about in Bush’s outrageous power grabs.