The Unitary Executive and the Jurisprudence of Carl Schmitt: Theoretical Implications for the 'War on Terrorism'
Georgetown University Law Center
January 7, 2007
Wayne State University Law School Research Paper
The Global War on Terrorism has occasioned a new challenge to constitutionalism and the rule of law. This challenge comes in the form of both astonishing theoretical justifications for the expansion of presidential authority at the expense of traditionally established legal constraints and unprecedented international and domestic policy formulation. These policy formulations have generated intensive controversy over their merits, legality, and political viability. Among the most prominent include legislation allowing considerable leeway in interrogation techniques by American servicemen abroad, the practice of extraordinary rendition, the recently revealed National Security Agency (NSA) eavesdropping program, the PATRIOT ACT, extensive usage of signing statements, among numerous others. Many of these initiatives seek to effectively liberate the President from governmental review and thereby place him above the reach of the law. Such thinking about the nature of executive power comes under the general framework of the “Unitary Executive Theory" (UET). This theory has been promulgated by the Bush Administration as the proper method for combating terrorism and other imminent security threats facing the United States of America. Tracing the philosophical basis for such reasoning about the relationship of Executive authority to the rule of law unveils a prominent jurist, who, writing during the tumultuous Weimar Era in Germany back in the 1920's sought to justify Nazi authoritarianism at the expense of constitutional procedures. A severe political emergency facing the very security of the nation could not be handled by appeal to legal or political approvals. Rather, Carl Schmitt argues, a sovereign entity, presumably the President, must be vested authority to circumvent the law in order to effectively deal with the threats at hand. This institution of the “state of exception" leaves the executive operating without any constraints from any judicial or legislative body, creating a considerable amount of independence- and potential abuse in the exercise of political power. The political thought expounded by Carl Schmitt strikingly parallels the ideas behind the UET. In the following essay, I seek to critically weave together the jurisprudence of Carl Schmitt with the underlying logic of the Bush Administration policy platform in our post-9/11 world.
Number of Pages in PDF File: 7
Keywords: Carl Schmitt, Unitary Executive, War on Terrorism, John Yoo, Bush Administration, Torture, Nazi Germany, Political Theoryworking papers series
Date posted: January 24, 2011
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