Hitler's crown jurist, Carl Schmitt, argued the executive was free of any constitutional, legislative, and moral restraints, because a powerful executive was imperative during times of crisis. For Schmitt, the basis of political rule boils down to the question: "Who decides?"
Schmitt's rationalizations for the Führerprinzip ("leadership principle") have since been revived (in modern America of all places) in the Unitary Executive Theory. This radical assumption of "unitary executive power" gained traction in the aftermath of 9/11, most notably when President George W. Bush rammed his own Ermächtigungsgesetz through Congress, and answering Schmitt's question with the declaration: "I'm the decider, and I decide what's best."
While infamously tied to John Yoo and Dick Cheney, the Unitary Executive Theory is truly a bipartisan affair, having advocates on both the "left" and the "right." Cass Sunstein, for example, argues that the "outcome" of federal law should "depend on the commitments and beliefs of the President." The New York Times doesn't hesitate to praise Obama's executive power grabs these days. But leave it to a hardcore neocon, University of Chicago Law School's Professor Eric Posner, to fully embrace Schmitt's contention that the "charismatic leader" ultimately derives his power from "the people."
Per Posner, legal restraints on the executive branch have been replaced by "political considerations," by which he means "democratic" public approval … He explains that presidents operate in a bubble defined by their own popularity and what the public will accept "to maintain the credibility to govern" which he also refers to as "political legitimacy" … asserting that the "public values stronger federal regulation of national concerns" because the nation has evolved politically, no longer restrained by "rule of law," into an "administrative state." It is "a natural development, reflecting public opinion and the institutional advantages of the presidency."
Partisanship on both sides of the aisle have blinded Americans to the very dangerous and un-American nature of the Unitary Executive Theory. As long as "our guy is in charge," an increasingly passive and accepting American public tells themselves … lulling themselves to sleep in the illusory "safety" of "their" American Führer's embrace.
And here we are …
Americans cannot expect to have good presidents if presidents are permitted to make themselves czars. — James Bovard