Robert M. Jeffers describes the paradox at the heart of BushCo's legal theories:
If Alito's more bizarre notions of Presidential power could be made law by ruling of the Supreme Court, then Alito's aversions during the hearings that the President is "not above the law" would remain true, but be completely pointless. Because, per Judge Alito's writings, the President is the law. Signing statements and extraordinary powers where the court "lacks expertise" (and that is a basis upon which the court declines to intrude on such issues as the declaring of enemy combatants in wartime) would become code-words for: the President cannot violate the law, because the President determines the law.The German legal theorist Carl Schmitt phrased this a bit differently: "Sovereign is he who determines the state of exception." BushCo's "unitary executive" is sovereign in Schmitt's sense; he decides when – and to whom - the law doesn't apply. The result is a "dual state" in which law and authority co-exist without necessarily coinciding; law is in force without being applied, and authority exercises force without law.
This sounds like dictatorship. But Giorgio Agamben makes a crucial distinction between dictatorship and the state of exception. The latter
is not defined as a fullness of powers, a pleromatic state of law, as in the dictatorial model, but as a kenomatic state, an emptiness and standstill of the law.One difference is that the state of exception is ostensibly based on a “necessity” that arises from some real or imagined emergency. The problem here, of course, is that a person who has the authority to declare a state of emergency also has the authority to bestow upon himself the freedom to act outside the law, which is an obvious - and dangerous - conflict of interest.
What's even more problematic is that this subjective, potentially self-serving determination is not limited to the sovereign, but is within the reach of each citizen. A president who "defends" the Constitution by breaking the law emboldens citizens to do the same, just as a president who ignores international laws against torture increases the risk that its citizens, or those of its allies, will be tortured. A ruler who places himself outside the legal order virtually obliges himself to increase surveillance and repression, which increases the temptation of citizens to exercise their own sovereignty, and declare their own state of exception. It's easy to see how this situation could spiral out of control, even if one is unaware of situations in which it has.