So the right to set aside law is "inherent in the president". That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means -- a government of laws, not men, and all that.He allows that no less a figure than Thomas Jefferson argued that there are cases where the president must act out of necessity, but that these were extreme cases where the president must thereafter "throw himself on the mercy of the public". All this is true.
What he didn't seem to notice, however, is that the dangers of extra-constitutionalism that he is concerned about are as old as American-style republics.
As I've mentioned in the past, there is a fundamental danger in an American presidential republic, which is that the head of government and the head of state are the same person. This invests the head of government with a lot of power; the symbolic power of the head of state can be used by the president to influence (or even dominate) domestic politics. This power waxes and wanes, of course, but in situations of perceived crisis it can be overwhelming, thanks to the natural need of nations and societies to have some person to rally around. This is why the Royals in England were so important in keeping spirits up during the Blitz, and why American presidents tend to enjoy so much lattitude.
When crises arise, then, there is both the opportunity and, lets face it, a clear desire for the head of state to "take charge and lead the people". If the problems of politics get in the way, then the president has a nearly irresistable opportunity to sweep those "problems" away, which usually means "emergency powers" of some sort. Once gained, these powers are very rarely given up, as there are always new "crises" to exploit to retain them.
(This can be done with the best of intentions; democratic politics can be maddeningly slow. A president that seizes power isn't necessarily evil or power-mad; he could be a good man that honestly believes that this is necessary.)
A king or queen can't really do this, because their role as embodiment of the people doesn't stem from popular acclaim but their membership in a particular family. People's commitment to popular rule is too strong nowadays for family ties to be seen as justification for conferring absolute power. A king couldn't dissolve the legislature by claiming that it's the "will of the people"; he'd get quickly contradicted by his (elected) prime minister as head of government. Every president, however, can at least partially claim legitimacy as the embodiment of the popular will. It is that will from which his legitimacy stems, but it is also that will from which modern cults of personality are born.
These sorts of events are incredibly common. In fact, they're so common that the fact that the United States has never had this happen has baffled political scientists since the phenomenon was noticed. There are a number of theories as to why, but my own favorite stems from an American military tradition, which is that soldiers swear loyalty to the Constitution, not the president, despite being their "commander in chief". One of the most treasured aspects of the American system is its balance of power between judiciary, executive and legislature; while its effectiveness can sometimes be questioned, it's important in that it enshrines the idea that the United States is a country where the laws stand above the president; that the symbolic power of a head of state will never confer absolute power upon him. "L'etat c'est moi" does not apply. It is, perhaps, the only way in which one can have a powerful president without having the system fly apart in the face of crisis.
Josh and the WSJ, however, has shown that the United States may be moving in the direction of countries like Argentina and Chile. The line of argument made in the memo isn't new, but very, very old... it's the first stage in a possible process where the powers of the laws is eroded and the powers of the executive rise in their place. Arguing that the president has the right to "set aside the laws" is an argument for absolute executive power, because the supremacy of "the laws" is the only real power that the legislature and judiciary have. Without this legal supremacy, the United States becomes like every other fragile republic in the Americas.
We know what will happen. We've seen it dozens of times before, and we'll see it dozens of times in the future. Republics are always haunted by the spectre of their "commanders-in-chief" becoming simply "commanders". The Latin word for commander is "imperator", more popularly known as "emperor". America may yet have its Napoleon; its Octavian. That it hasn't happened yet does not mean it won't.
This memo and the ideas that underlie it does not make empire inevitable; it is, however, the first necessary step in journeying down that road.
Edit: Digby also provides some good commentary on this issue.