A king can still be subject to law. Even George III was subject to law. The American Revolution was justified by the notion that he had overstepped the law. But today's justices are not envisioning any constitutional system at all, even a constitutional monarchy. Instead, they are flirting with the idea that a single person can be outside any constitutional system, totally outside the rule of law.
What justices seem to find appealing is dictatorship, specifically a fascist dictatorship, for a person that attracts them. That is the basis of Nazi legal theory, Snyder argues - that law and the constitution are there just so we can find the person, the Leader, the Führer, to break them.
Historian Heather Cox Richardson reminds us that in a November 2019 speech to the Federalist Society, former Attorney General Bill Barr, ignoring the Declaration of Independence, which is a list of complaints against King George III, argued that Americans had rebelled in 1776 not against the King, but rather against Parliament. In his view, Barr argues, Congress today has grown far too strong and the president should be able to act on his own initiative and not be checked by either congressional or judicial oversight.
That theory is known as the theory of the “unitary executive,” and it says that because the president is the head of one of the three unique branches of government, any oversight of that office by Congress or the courts is unconstitutional. However, presidents since George Washington have, in fact, accepted congressional oversight and constitutional checks and balances.
The theory stems from a 1986 proposal by Samuel Alito, then a 35-year-old lawyer for the Office of Legal Counsel in the Department of Justice, for the use of “signing statements” to take from Congress the sole power to make laws by giving the president the power to “interpret” them. In 1987, Ronald Reagan issued a signing statement to a debt bill, declaring his right to interpret it as he wished and saying the president could not be forced “to follow the orders of a subordinate.”
In April 2020, to justify his demands for states to reopen in the face of the deadly pandemic, Trump told reporters, “When somebody is the president of the United States, the authority is total….” In the summer of 2020, furious that the story had leaked that he had taken refuge in a bunker during the Black Lives Matter protests, Trump called for the White House leaker to be executed.
Now, in 2024, Richardson reminds us, Trump’s lawyers are in court arguing that the president has criminal immunity for his behavior in the White House, possibly including his right to order the executions of those he sees as enemies.
In 2019, Barr explained to an audience at Notre Dame the ideology behind "unitary executive" theory. Rejecting the clear words of the Constitution’s framers, Barr said that the U.S. was never meant to be a secular democracy at all. When the nation’s founders had spoken so extensively about self-government, he said, they had not meant the right to elect representatives of their own choosing. Instead, he maintained, the founders meant the ability of individuals to “restrain and govern themselves.” And, because people are willful, the only way to achieve self-government is through religion.
Those who believe the United States is a secular country, he claimed, are destroying the nation. It was imperative, he continued, to reject those values and embrace religion as the basis for American government. Just last Friday, in an interview on CNN, Barr said, “I think the real threat to democracy is the progressive movement and the Biden administration.”
The idea that the United States must become a Christian nation has apparently led Barr to accept the idea that a man who has called for the execution of those he sees as enemies should be president, apparently because he is expected to usher in an authoritarian Christian state.
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