Bill Kristol and Gary Schmitt in the WaPo:
… That is why the president uniquely swears an oath – prescribed in the Constitution – to preserve, protect and defend the Constitution. Implicit in that oath is the Founders’ recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.
Josh Marshall has thoughts on possible difficulties with this notion that ‘the power to set aside laws is "inherent in the president."’
But without waiting for the dust to settle we’ll just step back and declare: so it’s settled, Carl Schmitt’s Political Theology is the late-breaking, runaway dark-horse winner stocking-stuffer political book of the season. And we hereby open a new front in the war on Christmas, as it is clear the President, like Santa, doesn’t have the time to go to to some damn judge every time he needs to know whether someone is naughty or nice.
Unfortunately, my copy of Schmitt isn’t handy. But google provides. First, from a year ago, a free CHE piece, "A Fascist Philosopher Helps Us Understand Contemporary Politics". This piece focuses on Schmitt’s thesis concerning the primacy of the friend/enemy distinction.
In The Concept of the Political, Schmitt wrote that every realm of human endeavor is structured by an irreducible duality. Morality is concerned with good and evil, aesthetics with the beautiful and ugly, and economics with the profitable and unprofitable. In politics, the core distinction is between friend and enemy. That is what makes politics different from everything else. Jesus’s call to love your enemy is perfectly appropriate for religion, but it is incompatible with the life-or-death stakes politics always involves. Moral philosophers are preoccupied with justice, but politics has nothing to do with making the world fairer. Economic exchange requires only competition; it does not demand annihilation. Not so politics.
But actually Schmitt may be best known for his doctrine of ‘the exception’, which is arguably his truly fundamental notion. You get a bit about that in this wikipedia entry. This site has quite a good entry, I think, so I’ll quote the whole relevant passage:
‘Deigns to undermine’ is somewhat odd phraseology – though evocative. But I think the doctrinal gloss is sound. You see where I’m going with this. If you click on that link above there is a sidebar with links to Schmitt-related sites. Several links are broken. But this one works – taking you to a selection from a lecture on Schmitt by Georgio Agamben.
Schmitt’s political theory was founded on the idea of exception (Ausnahmezustand) from where he launched an attack on liberalism. According to Schmitt unforeseen and sudden situations in the political render unstable any system build on pre-planned responses and fixed legal codes. The political rests on a fundamental contingency and basic conflict hence it cannot adopt apriori rules of procedure. Liberalism disregards this inherent contingency and does not account for exception in its constual of rules.
The direction all this leads, and the reason why Schmitt has been taken so seriously by political theory, is to the theorisation of the crisis and state of emergency as not exceptional moments in political life opposed to some stable normalcy, but themselves the predominant form of the life of modern nations. Thus emergency powers and so on have increasingly become the normal operation of the state. In respect to Sovereignty, it is “precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of sovereignty”. In fact it is exception, tied to war, tied to the political that is the fundamental category of Schmitts work, yet it is never defined as such, as it allways has the character of being beyond the law, it is thus referred to as danger, or ‘extreme peril’ in fact, perhaps anything that confronts, undermines and destroys the rule. But it differs slightly from emergency which provokes the necessity of immediate responses to unforseen events, because ‘emergency’ still relates to an idea of normalacy (and to state attempts to return to the normal) that is essentially what the later work of Schmitt deigns to undermine.
The classical treatment of tates of emergency and of exception confer upon the sovereign or supreme leader to suspend certain aspects of the legal order, but he has no power to reverse or fundamentally changed that order, hence emergency has a duration after which normality is returned to (see Ogen Gross 1835-1839) – this follows the model of the Roman dictator as read by Machiavelli and Rousseau, as well as being found in the work of Locke wherein the ‘perogative power’ can act against the law at the discretion of the public good. In the work Political Theology, this earlier paradigm, accepted for instance in The Dictatorship, is dramatically revised: the exception becomes the rule and the normalcy becomes and empty and meaningless point of reference. This destruction of normality retains one principle element, that is the authority of the sovereign power (though this Schmitt tries to give a transcedental/theological authority). Schmitt seeks to legitimate the increase of the sovereign power, to not only temporalily suspend the constitution for the public good, but to actively revise or fundamentally change the rules of constitutional authority – the sovereign both defines what is the exception and defines what is the adequate response to it. In this case, law which was itself the normal basis of sovereign authority, is also subverted by the total power of the absolutist state, the destruction of the normal and the rightful response of the sovereign to govern totally, thus evinces completely the right of any kind of redress against his over-arching power.