The Silent Coup - How a nation ruled by law, becomes a nation ruled by men

 But by that time there had been so many presidential signing statements, unchecked classifications, claims of State Secrets Privilege, executive privilege, passed bills and set precedents. 

As already discussed, part of the strategy to change the political rules of the governing of USA was to aggressively push existing laws and interpretations of what was legal. By getting away with it, new precedents would be set that basically would mean a victory for the unitary executive camp.

It is always something to expect that in some cases there would be some resistance, and even complete failures. But what mattered was that overall the Bush administration would end with a net win for the home team.

If even aspects of this push for power that did end up in congressional debates and hearings largely is yet to be fully pursued, more subtle aspects went basically without any notice although there were exceptions – mainly individuals within media and congress.

Although it has not been pushed that far yet, there have been some changes made to the highest judicial authority, which could prove beneficial to the preservation of the gains, made for the unitary executive camp.

The Bush administration would come to nominate two Justices to the Supreme Court between 2000 and 2008 – Justice Samuel Alito in 2006 and Chief Justice John Roberts in 2005. During the confirmation hearings in 2005 for Samuel Alito - many questions aimed at probing Alito’s ideas on the power of the executive vis-a-vi the legislative branch. Senate Judiciary ranking member Patrick Leahy voted against Alito's nomination to the Supreme Court because he believed the nominee would not be a check on presidential power. Alito was ultimately confirmed with all but one republicans voting for him while nearly all the Democrat minority’s Senators voted against him – many explicitly stating reasons along the same line as Leahy. All Republican Senators eventually approved Chief Justice Roberts while the Democrat Senators split in half. Democrat Senator Edward Kennedy, who voted against the nomination, later wrote an op-ed stating that both Robert and Alito had proven his misgivings right: “they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law”. 

Another subtle shift is how presidential signing statements went from being mere rhetoric posturing and policy expressions from the President to possibly having legal impact.

Washington Post published an article 2 January 2006 concerning this, and the role played by one of the Bush appointees for the Supreme Court – Supreme Court Justice Samuel Alito: 

“As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch….//… In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy [which] laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law…//… The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."  

It was clear also that Alito was well aware of the increase in presidential power it would mean should his strategy succeed. He also anticipated that the Congress might have objections to it should they become aware of what was underway. Washington Post quotes Alito’s memo: 

"The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction," he wrote. "In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation." 

It needs to be restated that what I have referred to, as the “unitary executive camp” is not a matter of political parties although it might seem that way. Ultimately it is one way of interpreting a document that is superior to party politics and ideologies affecting the governing of the USA. That is why it is important to look beyond party affiliation and focus on how individuals with political power – whether through political office, financial means or being an influential think-tank or advisor – interpret the US Constitution.

The constitution is not a document that means the same to everyone; it is a text that needs interpretation.

While everyone elected to political office in USA swears to protect and uphold the constitution, few people ask hard questions about just WHAT it is they interpret the constitution to mean. 

It is important to recognize that there are legitimate reasons to make the President and the executive branch the primary managers of foreign intelligence and relations, especially during war.  Among these reasons are speed and consistency when responding to threats to the nation. In comparison with a body like the Congress - based on discussion, debate, compromising and diversity – the unitary nature of the executive branch, with its centralized leadership, can be argued as a better choice.
Washington once wrote that if Congress--this was during the American Revolution--if Congress believes that constantly changing members of their committees can monitor the business of war which requires speed and secrecy and unity of design, they deceive themselves.

The main thrust of this article, however, is not to dispute that the president should have inherent authority over certain matters. The point is that there is a need to bring to the front of public discourse and awareness that there is a battle being waged and that there are people who has planned for long to change the political and legal landscape of the USA in accordance with their theory of the intentions of the Founding Fathers and the right way to interpret the constitution.

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