News was made at the vice presidential debate between Joe Biden and Sarah Palin last night, but few noticed it, and no one has yet analyzed its far reaching and frightening implications.
The news came when the discussion turned unexpectedly to the powers of the vice presidency.
Moderator Gwen Ifill noted that Biden had said earlier in the year that he would not want to be vice president and that Palin had asked what a vice president does every day. Ifill then asked the candidates “What it is you think the vice presidency is worth now?”
In her answer, Plain first claimed that her question about the daily activities of the vice president was not a reflection of genuine ignorance but only a “lame joke.”
Then she veered suddenly in a very strange direction:
“Of course, we know what a vice president does. And that’s not only to preside over the Senate and will take that position very seriously also. I’m thankful the Constitution would allow a bit more authority given to the vice president if that vice president so chose to exert it in working with the Senate and making sure that we are supportive of the president’s policies and making sure too that our president understands what our strengths are. John McCain and I have had good conversations about where I would lead with his agenda.”
After Biden spoke about why he had accepted Barack Obama’s offer to be his running mate, Ifill turned back to Palin, asking her one of the very few “follow-up” questions of the evening:
“Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it is also a member of the Legislative Branch?”
Palin’s answer was uncharacteristically clear and unequivocal and — even more unexpectedly – firmly rooted in a specific interpretation of the Constitution and constitutional history:
“Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president’s agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we’ll do what we have to do to administer very appropriately the plans that are needed for this nation.”
The media have become so accustomed to hearing nonsense and gibberish from Palin that her clarity and specificity on this arcane point of Constitutional law and the Separation of Powers went almost unnoticed, although on MSNBC both Chris Matthews and Rachel Maddow attempted to draw attention to it. Even so, the question they asked – “What did she mean?” – went unanswered.
So let us ask again: What did Palin mean when she said that “the Constitution would allow a bit more authority givento the vice president if that vice president so chose to exert it” and “our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative withthe president’s agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we’ll do what we have to do to administer very appropriately the plans that are needed for this nation.”
On February 23. 2006, Salon published an article by Sidney Blumenthal entitled Cheney’s Coup. Blumenthal wrote that “On March 25, 2003, President Bush signed Executive Order 13292, a hitherto little known document that grants the greatest expansion of the power of the vice president in American history. The order gives the vice president the same ability to classify intelligence as the president. By controlling classification, the vice president can in effect control intelligence and, through that, foreign policy. Bush operates on the radical notion of the ‘unitary executive’, that the president has inherent and limitless powers in his role as commander in chief, above the system of checks and balances. By his extraordinary order, he elevated Cheney to his level, an acknowledgment that the vice president was already the de facto executive in national security. Never before has any president diminished and divided his power in this manner. Now the unitary executive inherently includes the unitary vice president.”
What Blumenthal referred to as “the radical notion of the ‘unitary executive’” was explained in an earlier article by Elizabeth de la Vega, also published in Salon, entitled Big Brother is Watching You. “[O]nly recently,” de la Vega wrote, “has the world received notice that President Bush’s ‘I can do anything I want’ approach to governance has a name: the Unitary Executive Theory of the Presidency.” As de la Vega pointed out, the Unitary Executive Theory was offered by Bush administration officials as a rationale for “President Bush’s recent confession to a crime: repeatedly authorizing the National Security Agency to intercept domestic electronic communications for foreign intelligence purposes without a court order in violation of the Foreign Intelligence Surveillance Act. FISA contains no exception for the president, but Bush claims his action is legal because: 1) Congress endorsed it in its Sept. 18, 2001, Authorization to Use Military Force in response to Al Qaida’s September 11th attacks, and 2) he has inherent power as chief executive to act as he deems necessary in wartime.”
Under this theory, the powers of the president and vice president are not limited to those powers that are specifically enumerated in the Constitution, but include the broad and unlimited power to take any action whatsoever that the Executive Branch deems necessary to protect the United States (for example, torture of prisoners and warrantless wiretapping of U.S. citizens), regardless of the contrary views of the Congress or even the courts.
As Cheney told the Wall Street Journal, “[G]iven the world that we live in…the president needs to have unimpaired executive authority.”
The primary advocate for the claim that the Executive Branch has unlimited and unreviewable power has been the former head of the Bush administration’s Office of Legal Counsel, John Yoo.
As Yoo asserted in his infamous “Torture Memo” (officially titled “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and the Nations Supporting Them”):
“The President’s constitutional power to defend the United States and the lives of its people must be understood in light of the Founders’ express intention to create a federal government ‘cloathed withall the powers requisite to [the] complete execution of its trust’ … [I]t is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action … the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature – such as the power to conduct military hostilities – must be resolved in favor of the executive branch .. [While] Congress’s legislative powers are limited to the list enumerated in Article I, section 8, while the President’s powers include inherent executive powers that are unenumerated in the Constitution . . .[No] statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”
What is striking is the extent to which Sarah Palin’s comments in the vice presidential debate tracked the Bush administation’s assertion of, and rationale for, the Cheney-Yoo theory of unlimited and absolute Executive power.
Given that Palin has never before shown any in-depth knowledge of American history or Constitutional theory, it is also apparent that this particular issue has been of special interest to her and her handlers.
Indeed, this was one of the very few questions that Palin has answered where one could come to the conclusion that she has thought about this before.
Any doubt that Palin was specifically invoking the Cheney-Yoo theory of an Imperial Executive with absolute power outside the system of checks and balances is removed by noting Palin’s repeated use of the key phrase “flexibility.”
As David Cole observed in The New York Review of Books, “all of Yoo’s departures from the text of the Constitution point in one direction—toward eliminating legal checks on presidential power over foreign affairs. He is candid about this, and defends his theory on the ground that it preserves ‘lexibility’ for the executive in foreign affairs. But the specific “lexibility’ he seeks to preserve is the flexibility to involve the nation in war without congressional approval, and to ignore and violate international commitments with impunity. As Carlos Vazquez, a professor of law at Georgetown, has argued in response to Yoo, ‘flexibility has its benefits, but so does precommitment.’ The Constitution committed the nation to a legal regime that would make it difficult to go to war and that would provide reliable enforcement of international obligations. Yoo would dispense with both in the name of letting the president have his way.”
What this means is that the Cheney-Yoo rationale for absolute Executive power has been part of the background planning for the McCain-Palin administration, and that those who are fashioning a future McCain-Palin regime have already anticipated taking actions that would require justification by a Constitutional theory of absolute and unlimited Executive power.
In this context, even more chilling is Palin’s promise that she and McCain will “do what we have to do to administer very appropriately the plans that are needed for this nation.”
With Palin’s endorsement of the notion of unlimited Executive power, that promise was a threat.
Here, then, is the news that was made in the vice presidential debate: The McCain-Palin administration already has a plan to use military force against its perceived enemies, both foreign and domestic, and this plan requires a theory of unlimited Executive power to ““do what we have to do to administer very appropriately the plans that are needed for this nation” regardless of whatever the Congress, the courts, or anyone else might think.
That’s called totalitarianism.
And the McCain-Palin administration already has a plan to implement it.