[In a highly unusual move considered illegal by many analysts, US President Donald Trump deployed federal forces to suppress demonstrations in Washington, DC, as well as Portland, Oregon. Insisting he possesses the authority to deploy such troops to any US city, critics have accused Trump of engaging in authoritarian behavior that exceeds his constitutional powers in order to divert attention from his catastrophic failures during the coronavirus pandemic and a faltering re-election campaign. Mouin Rabbani, editor of Quick Thoughts and Jadaliyya Co-Editor, interviewed Lisa Hajjar, Jadaliyya Co-Editor and Professor of Sociology at the University of California, Santa Barbara, to learn more about the historical and ideological context of the Trump administration’s executive excess.]
Mouin Rabbani (MR): The use of federal forces to suppress demonstrations in Washington, DC, and more recently Portland, Oregon, is seen by many as emblematic of the concentration of power by the White House, marginalizing Congress and transforming the Department of Justice into a tool that serves the personal agenda of the president. How is this different from previous campaigns such as COINTELPRO and the elimination of the Black Panther movement during the 1960s and 1970s, and why is it significant?
Lisa Hajjar (LH): President Donald Trump’s assertion of his executive authority to send heavily armed federal agents to US cities on the pretext that national security is imperiled exemplifies a particular view of presidential power. Although Trump is no theorist, he is advised by people, including Attorney General William Barr, who subscribe to the “unitary executive thesis”; they interpret Article 2 of the US Constitution, especially Section 2 (the commander-in-chief clause), as vesting the president with not just unitary but unilateral powers to control all executive branch agencies (i.e., the FBI, the Justice Department, the Department of Homeland Security, etc.), and the prerogative to make security policy decisions and issue executive orders as he sees fit. Furthermore, as the theory goes, any effort by Congress or courts to restrict the ways in which the president chooses to exercise this power would itself be unconstitutional.
What is happening now in Portland, Oregon, similar to what happened in Washington, DC, in June when Trump called in military units to break up demonstrations near the White House, is a case study of the unitary executive thesis in action. Trump is justifying his order to send federal agents into Portland and possibly to other “Democrat-controlled cities”—as though these were enemy territory—on the grounds that ongoing demonstrations against racism and police violence, and some graffiti and vandalism of federal buildings or statues (of historical racists), pose a “national security emergency.” This whole situation is obviously an effort by Trump to distract from the fact that his poll numbers are in freefall and growing sectors of the US public think his handling of the coronavirus pandemic has been an unmitigated disaster. What the current ludicrous and dangerous situation illustrates is that the unitary executive theory advances the position that the president can do whatever he wants because he is the president and because his office bestows this power upon him and him alone.
In order to contextualize the contemporary manifestations of executive excess, let us take a trip down memory lane. The thesis of unitary executive power was conceived in the mid-1970s during the rise of the “new right.” Right-wing legal intellectuals wanted to expand—or in their view restore—the full powers and discretion of the presidency that had been clipped in the post-Watergate/post-Vietnam/post-COINTELPRO era when Congress imposed new checks, like the War Powers Act, and instituted stronger oversight mechanisms.
At that time, Dick Cheney was a Republican member of Congress from Wyoming. He was adamantly opposed to the rollback of presidential power, especially in the realms of national security and foreign policy. Andrew McKay’s 2018 dark comedy biopic Vice dramatizes Cheney’s quest to figure out a way to reverse the rollback. In one telling scene, Cheney (played to perfection by Christian Bale) meets Antonin Scalia; this encounter is set in Scalia’s office sometime before President Ronald Reagan appointed him to the Supreme Court. When Scalia tells Cheney that the Constitution can be interpreted to allow the president to assert his powers without subjecting decisions to congressional approval or judicial oversight, Cheney’s normally emotionless face lights up.
In the 1980s, Reagan and his attorney general, Ed Meese, wanted to sidestep the Democratic-controlled Congress in order to do what they wanted at home (e.g., bar the Centers for Disease Control from issuing congressionally mandated information guidelines regarding HIV-AIDS) and abroad (overthrow the government of Nicaragua). In this witch’s brew, Cheney’s first opportunity to advance the unitary executive thesis occurred when Congress launched an investigation into the Iran-Contra scandal. The scandal was triggered by revelations that Reagan administration officials had defied the will of Congress by intervening in Nicaragua in support of a right-wing militia, the Contras, which were trying to overthrow the left-wing Sandinista government, and that they were funding this operation by channeling revenue from the clandestine sale of arms to the Islamic Republic of Iran to the Contras. The Iran-Contra investigative report was an indictment of executive malfeasance. Cheney authored a minority response protesting what he regarded as congressional overreach into the realms of national security and foreign affairs.
When Cheney served as President George H.W. Bush’s secretary of defense, he tried but failed to exclude Congress from having a say in the decision to wage the 1991 Gulf War. He got legal support for the view that the president has the unilateral power to decide whether to go to war from William Barr who was the head of the Justice Department’s Office of Legal Counsel. One of Barr’s other contributions to the unitary executive thesis during the administration of Bush Sr. was to author a legal memorandum on “the president’s snatch authority,” to provide legal justification for US rendition operations (i.e., abducting foreign suspects abroad and extralegally transferring them either to the United States, their home country, or a third country).
When Cheney returned to Washington in 2000 as George W. Bush’s vice president, he made sure that top positions across the executive branch were filled by people who shared his enthusiasm for strengthening and insulating presidential power. They got their chance to put the unitary executive thesis into practice after September 11. Every aspect of the Bush administration’s “war on terror,” including the torture policy, forced disappearance, Guantanamo, CIA black sites, warrantless spying on citizens, and drone warfare was built with unitary executive thesis building blocks. Notice that I include drone warfare in this list. President Barack Obama inherited the “war on terror” and drone warfare became one of his signature modes of waging it. Thus, while the unitary executive thesis might have been cooked up by right-wingers, it has acquired a bipartisan complexion. Now Trump is playing with the blocks.
MR: According to a recent article in Axios, the Trump Administration is “privately considering a controversial strategy to act without legal authority to enact new federal policies,” particularly with respect to immigration, and is relying on a recent opinion piece by John Yoo who, during the George W. Bush presidency, drafted legal opinions that promoted the use of torture, in order to do so. What is Yoo's argument, how might it be utilized by the White House, and what would the impact of such a strategy be?
LH: Indeed, Yoo was appointed to the position of deputy assistant attorney general in the Bush administration’s OLC precisely because he was a proponent of the unitary executive thesis. (He held this position from 2001 to 2003.) He demonstrated his bona fides immediately after September 11. On 16 September 2001, Congress passed the Authorization for Use of Military Force (AUMF), which granted the president a territorially unbounded prerogative to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Echoing Barr’s 1991 advice to Bush Sr., Yoo immediately wrote an official memo for the president telling him that, while congressional approval might be nice, he didn’t need any legislative authorization to go to war where he wanted or do what he wanted. “Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency.”
Yoo is most infamous for authoring the 1 August 2002, memo that “legalized” torture. But he left unitary executive thesis fingerprints all over the place. At the start of the “war on terror,” he wrote a memo arguing that the Geneva Conventions do not apply in Afghanistan because it is a “failed state” (a concept that does not exist in international law). In late December 2001, when Guantanamo was selected as the main site for long-term interrogation and detention, he co-authored a memo pitching the claim that US courts have no jurisdiction over this offshore base and therefore detainees have no habeas corpus rights (the right to appear before a judge or court to determine whether or not detention is lawful). In early January 2002, he wrote another memo arguing that Geneva Convention protections are inapplicable to people whom the president has declared to be “unlawful enemy combatants” because he thought (incorrectly) that the Geneva Conventions only apply as a matter of reciprocity in conflicts with other states.
When Yoo’s classified legal reasoning on these matters was exposed in 2004, it was resoundingly condemned by legal experts, bar associations, and human and civil rights advocates. But he was neither cowed by condemnation nor schooled in the errors of his ways. In many public events after his memo-writing cover was blown, he was called to task for arguing that the president has the right to authorize torture, but he stood firm in his view that the president can do whatever he deems appropriate and necessary. In a 2005 debate with Notre Dame University law professor Doug Cassell there was an exchange that was highly illustrative of Yoo’s unshakable thinking. Cassell asked, “If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?” Yoo replied, “No treaty.” Cassel pressed him on this position and Yoo replied, “I think it depends on why the President thinks he needs to do that.”
What makes Yoo’s resurrection as a presidential advisor by Trump so alarming is that he is sanctioning and encouraging the unfettered exercise of executive power by someone whose legal deviancy will go down in history as unparalleled by even the worst former occupants of the White House.