Obama-Sunstein Unconstitutional Dictatorship Bases Itself on Legal Theory of Nazi Crown Jurist Carl Schmitt

As previously reported, Obama mentor, Harvard and Chicago law professor Cass Sunstein co-authored an article in 2008 with Adrian Vermeule titled "Conspiracy Theories," in which they proposed that the U.S. Executive employ covert agents to "cognitively infiltrate" and counter groups exercising their First Amendment rights. Among the possible actions entertained by the authors is for the Government to ban conspiracy theorizing. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1084585

These police-state measures against political opposition as protected by the U.S. Constitution are just the tip of the iceberg.

In January 2011, Sunstein's co-author Adrian Vermeule, along with Chicago Law School's Eric A. Posner, wrote a paper titled "Demystifying Schmitt," referring to the Nazi Crown Jurist Carl Schmitt. This paper begins, "Carl Schmitt is too important to be left to the Schmitt specialist." Citing Nazi Crown Jurist Schmitt's statement that "he is sovereign who decides on the exception," Vermeule writes: "Schmitt believed that constitution-writing assemblies and legislatures cannot enact substantive laws that govern the executive during emergencies; the most the rulemaker can specify in advance is who will exercise emergency powers." "Schmitt noted that 'the extraordinary lawmaker' [i.e., the President of the Reich] can create accomplished facts in opposition to the ordinary legislature. Indeed, especially consequential measures, for example armed interventions and executions, can, in fact, no longer be set aside.'" The "'presidential power of unilateral action' implies that he can create a new status quo that constrains Congress' subsequent response, both in practical terms and because the President can use his veto powers to block legislative attempts to restore the status quo ante."

Vermeule then writes: "The upshot is that the Madisonian theory is a poor description of how modern democratic governments operate during emergencies and in anticipation of emergencies.... The current system, then, is better described as one of executive primacy than separation of powers.... If the legislature nonetheless enacts rules for emergencies, or general rules that lack exceptions for emergencies, the executive must be willing to violate them in order to save the nation." The same is true in respect to the courts: "The executive rather than the courts takes primary responsibility for interpreting the rule." See http://www.law.uchicago.edu/files/file/333-eap-Schmitt.pdf

Vermeule and Posner are absolutely explicit in their opposition to the U.S. Constitution, as reflected as well in the title of another book they co-authored: The Executive Unbound: After the Madisonian Republic.

All of the unconstitutional measures taken by Obama, from launching the Libya war without Congressional authorization, to demanding that the NDAA include a provision allowing for the indefinite detention without trial of American citizens, to the assassination of U.S. citizens without judicial review, to his attack on the U.S. Supreme Court as merely nine unelected lawyers, reflect precisely this theory of Carl Schmitt as promulgated by Sunstein's co-author Vermeule.

All of the arguments made by Obama, by Attorney General Eric Holder and by Secretary of Defense Leon Panetta on behalf of the supremacy of the Executive, derive from Carl Schmitt as mediated through Sunstein and Vermeule.

For example, when Leon Panetta told a Congressional hearing that the President would not ask for Congressional authorization to launch a war against Syria or Iran, he stated that the only power the Congress has is that of the purse. In "Demystifying Schmitt," Vermeule writes: "Congress retains a very crude veto power; it can interfere with executive policymaking during emergencies only by withdrawing funds and, in effect, calling the emergency off."

When three federal judges ordered Eric Holder to submit a statement with regard to Obama's assertion that the Supreme Court could not review the constitutionality of his T-4 healthcare law, since they are only unelected lawyers, the issue involved was the case Marbury v. Madison, which states that it is "emphatically the province and the duty of the judicial department to say what the law is."

While professing adherence to Marbury in his answer, Holder actually lied —this is not the view of either Obama or Holder, as also made manifest in Holder's argument in his speech at Northwestern University Law School in March, defending the administration's right to assassinate U.S. citizens. In that speech he said that "due process" does not mean "judicial review."

This view, based on Carl Schmitt, is fully expressed in a 2005 paper written by Cass Sunstein in the Yale Law Journal, entitled "Beyond Marbury: The Executive's Power To Say What the Law Is," in which he writes, "I am grateful to Adrian Vermeule for many discussions." In his introduction, Sunstein writes: "There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him. My major goal in this Essay is to vindicate the law-interpreting authority of the executive branch." See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=839444

As Carl Schmitt wrote in an article published on Aug. 1, 1934 entitled "The Leader Defends the Law:"

"The Leader takes the lessons of German history seriously. That gives him the right and the power to establish a new State and a new order. The Leader defends the law against the worst abuse, when at the moment of danger he directly creates law by virtue of his leadership as the supreme judicial authority.... The true Leader is always also Judge. In truth the action of the Leader ... is not subject to the judiciary, but rather was itself the supreme judiciary.... The Leader determines the content and the scope of his course of action himself."