Unilateral (aka Unitary) Executive doctrine: the brainchild of John Yoo and David Addington which seeks to establish a legal framework through misreading the Constitution for a Presidential dictatorship.
On December 7, 2007, Senator Sheldon Whitehouse (D-RI) released parts of Office of Legal Counsel (OLC) opinions that he got declassified concerning Bush’s warrantless wiretapping programs:
- An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
- The President s, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
- The Department of Justice is bound by the President’s legal determinations.
What this says is that the President under his Article II powers as Commander in Chief can do whatever he wants and that he is the sole arbiter of whether what he does is legal. This echoes Richard Nixon famous dictum: ‘Well, when the President does it that means it is not illegal." And we saw how well that turned out.
On April 30, 2008, John P. Elwood, Deputy Assistant Attorney General at the Office of Legal Counsel (OLC) testified before Congress that the President has the right to ignore or change existing executive orders without disclosing that he has done, meaning that he can deceive the Congress and public if he wishes to and create programs that directly violate known EOs with no oversight from anyone.