by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson’s book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published in spring 2016 by the University of Wisconsin Press.
Most people probably haven’t heard of the unitary executive theory, the radical notion that the president can set aside lawsâ€’even criminal lawsâ€’that, in the president’s view, infringe on executive power. This is a theory that effectively places the president above the law. The Bush-Cheney administration invoked the unitary executive theory to justify, among other things, warrantless surveillance prohibited by the Foreign Intelligence Surveillance Act and torture prohibited by U.S. anti-torture law.
Vice President Cheney was the administration’s leading advocate for the unitary executive theory, but John Yoo, then a lawyer in the Office of Legal Counsel (OLC), wrote memos explaining it. When Yoo’s once-secret memos were made public, commentators were rightly shocked. As Elizabeth Drew observed, “Yoo…took the view that the president had the power to do pretty much whatever he wanted to do.” In an August 1, 2002, memo signed by his boss Jay Bybee, Yoo concluded that for an act to constitute torture, it must be intended to inflict pain “equivalent to that associated with ‘death, organ failure, or serious impairment of body functions.’” Yoo based this definition on out-of-context language he found in a health care statute. This grotesquely narrow definition of torture allowed the OLC to conclude that waterboarding, a method of controlled drowning in which the lungs are filled with water, was legally permissible. But OLC’s back-up argument went even further, concluding that the president could authorize any interrogation method he or she deems necessary. If the president wants to authorize torture which is, by definition, illegal, the president can simply set aside statutory limits enacted by Congress. This is so, OLC concluded, because the president possesses “inherent constitutional authority” as Commander in Chief to manage military campaigns. “Inherent” authority suggests plenary, unrestricted authority—even extra-constitutional authority that simply cannot be limited by the other branches of government.
One might think it would now be out of bounds to endorse this theory of unrestrained presidential power. But presidential candidate Ted Cruz has suggested he is very comfortable with the Bush-Cheney-Yoo approach. This is something that ought to make the rest of us very uncomfortable.
During last Saturday’s Republican debate, Cruz was asked if waterboarding is torture. Cruz seemed to invoke the Yoo-Bybee definition of torture, explaining that “[u]nder the law, torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, [waterboarding]…does not meet the generally recognized definition of torture.” That’s not actually what the law says, but it does sound an awful lot like John Yoo’s bizarre definition. What Cruz said next made it even clearer that he endorses the Bush-Cheney-Yoo approach. He declared that “when it comes to keeping this country safe, the commander in chief has inherent constitutional authority to keep this country safe. And so, if it were necessary to, say, prevent a city from facing an imminent terrorist attack, you can rest assured that as commander in chief, I would use whatever enhanced interrogation methods we could to keep this country safe.” That is the language of the unitary executive theory—inherent power that cannot be limited, presidential discretion to do whatever the president believes is necessary, regardless of contrary legal limits.
Ted Cruz has denounced President Obama as implementing an “imperial presidency” marked by a “persistent pattern of lawlessness, [Obama’s] willingness to disregard the written law and instead enforce his own policies via executive fiat.” It is certainly fair to ask questions about the scope of power the Obama administration has implemented in the context of national security (though Cruz’s criticisms focused on domestic actions). It’s also fair to point out that other presidential candidates may have views on torture and presidential power that are similar to Cruz’s—or perhaps go further, if that’s possible. But it is also well worth asking how Cruz himself reconciles his view of presidential power with the rule of law. His statements about torture suggest that he is partial to the unitary executive theory and the notion that, when it comes to keeping the nation safe, we ought to trust the president to exercise unchecked discretion.