Yeah, it's weird. The most strangely theological argument I've heard (I think it was someone quoted by Yglesias) is that the U.S. Attorneys are "emanations of the executive's will" -- like they're seraphim, or ringwraiths, or something otherwise touched with dark holy powers that in this case can't be used against their master.

I'm going to go on record as saying that if this continues in the obvious directions that history will remember the next 18 months as the most serious constitutional crisis of our time.

If Congress asserts its prerogative to issue contempt citations, then Bush will claim that his staff aren't subject to Congress's authority. The issue would be judged by the courts, with the distinct possibility that Bush, in the event that the courts ruled against him, would claim that he isn't subject to judicial review. That's the logical outcome of a unitary theory of the executive, which stands in direct opposition to any theory of a system of checks and balances.

The one thing that may save us is that Bush's term will expire long before any sort of judicial review could run its course.

I feel that my previous comment didn't really offer any insight, which bothers me, but I have a hard time viewing "the unitary theory of the executive branch" as anything other than a power grab by an administration that has been amazingly open about its propensity for it willingness to create new powers for itself and its disdain for any oversight.

Is there a way to discuss this reasonably? Is there something to be learned? I am not of an activist disposition, but perhaps that's why I feel at a loss about what to say or do.

What is most striking in Gavin's possible scenario is that which is left out: the role of the military in resolving all-out gridlock. It is absolutely inconceivable that some general or group of generals would act on their own on American soil to depose Bush or humble the Congress, or clean out the whole lot of them. I'm led to think of this partly because we're now seeing one regime that was established this way face difficulties in Pakistan while the potential exists for another such regime to come to power in Bangladesh.

Mainly, though, I'm inspired by having been reading Edward Gibbon's _Decline and Fall of the Roman Empire_, written in the same year as Adam Smith's _Wealth of Nations_ and the Declaration of Independence. Gibbon's is clearly a story of an increasingly unified executive, as through politics and force, emperors who were intended to be commanders in chief took on the power of all civil administration as well, eventually neglecting the Senate entirely. Gibbon's story, as the title indicates, is one of declension. The Roman republic gradually loses the glories of its Constitution, which had balanced the strong executive with the power of the people's representatives. Gibbon disapproves as the Senate's ability to choose, or even just approve, the emperor is robbed by the military, even though he is willing to submit that the Roman legions may have been better representatives of the Roman peoples than the august Senators.

He's also ambivalent when it comes to good, strong leaders. Diocletian appears in the third century as a spoiler, seeming to halt the empire's decline and cause real difficulties to Gibbon's scheme. Not only did Diocletian expand the empire up to and exceeding the boundaries of its glory days, but Gibbon praises him for doing so while disciplining the out-of-control military before resigning his imperial privileges in an unprecedented move to retire peacefully to his farm. Even in praising this successful emperor, though, Gibbon bemoans that Diocletian's reign also marked the moment that the Senate entirely lost power and influence.

What can all of this tell us about our current situation in the US? Maybe nothing. But I like taking a moment stare at this truly foreign kind of empire, and this particular path to tyranny, as a means of giving fresh eyes to appreciate afresh parts of our own system that we are too busy thinking of as natural. The apolitical military is one striking example. I'm sure there are more.

At least as far as I understand it, judging from my expertise as a novice scholar of European and American literature, the theory of the unitary executive may in principle prevent Congress from compelling U.S. Attorneys or any other arm of the Justice department from enforcing contempt of Congress orders or (for example) suing Alberto Gonzalez or Harriet Miers or other members of the executive branch. The executive can't sue or prosecute itself, is the main idea.

But -- there's no Constitutional reason that Congress can't have someone from the legislative branch serve and enforce the orders. So, theoretically, the sergeant-at-arms of the Senate could arrest Harriet Miers tomorrow and compel her to testify. Or Congress could appoint a special prosecutor.

At any rate, there could be a procedural workaround to a real Constitutional standoff -- everyone is just trying to figure out what is legally and politically feasible, and nobody wants to make too big of a misstep on either score. Except Cheney's people. I don't think they really care anymore.

Yes! This is what I'm saying, Tim -- the unitary executive theory, while it may be a Bad Idea, is actually not totally incomprehensible and/or inconceivable.

And the claims that it renders the executive branch completely unaccountable seem wrong to me, per your second graf.

What we need is a congressional Cheney -- somebody absolutely dedicated to the innovative application & expansion of legislative powers :-)