We’re continuing our responses to Judge Napolitano’s “What If” speech on his Fox News show, questions that strike at the heart of what’s happening to our nation. The Judge asked many questions that are so closely related we’re lumping some of the together. Here are six that we can do that with:
“What if the President, meant to be an equal to congress, has instead become a democratically elected, term-limited, monarch? What if the President assumed that everything he did was legal, just because he’s the President? What if he could interrupt your regularly scheduled radio and tv programming for a special message – from him? What if he could declare war on his own? What if he could read your emails and your texts without a search warrant? What if he could kill you without warning?” And here’s our opinion on them:
Some presidents rule like a dictator because … he has that power. Because he can. And, honestly, sometimes – only sometimes – because he has to. Which kind of makes sense. In an emergency, Congress can’t respond quickly. Hell, they aren’t even on the job half the time. They recess, adjourn, go home. And when they are there, they aren’t, a lot of the time. They’re on the phone or on the run, drumming up campaign funds and support to get themselves re-elected into their cushy spots. Or they’re creating sound-bites and posturing for their up-coming run at the cat-bird seat. And when they really are there, it takes them so long to come to any kind of consensus we’d be toast before they could react. In an emergency, they’re like an entire flock of Chicken Little’s, running in panicked circles squawking like….well, like chickens.
Executive Orders are how a president gets things done, just like the boss of any organization. A president is in charge of running all these dozens, maybe even hundreds of departments, and agencies, and bureaus, and offices, and what-have-you, and Executive Orders are how he does it. Most EO’s are humdrum, everyday housekeeping notes to lower management. A lot of it – a LOT of it – depends on the management style of the particular president. And a lot of it depends on the crises he faces.
But the real issue is the way the presidents can and do use executive orders to forward their personal agendas and rule, if they want, pretty much as absolute monarchs. Since they can do whatever they want, who’s going to stop them? Unless Congress howls loudly enough, or someone gets the judiciary involved, they get away with pushing whatever agenda they want; and they have been known to ignore both legislative and judicial censure for their acts. The only two weapons Congress has is the House’s “power of the purse”, and impeachment. The problem with the purse-strings, other than the obvious political issue of getting a divided group to reach consensus on refusing to fund something a president has done that some of them don’t agree with, is the time interval involved. Even if the House censures a president’s executive action by refusing to fund it, that takes time to take effect. There’s already plenty of money in the pipeline; by the time the supply dries up, the damage is, in most cases, already done. Impeachment is the only real threat, and that, rightfully so, isn’t an easy – or quick – thing to do.
In 1861, when Lincoln issued the executive order authorizing military commanders to suspend the writ of habeas corpus at their discretion, it was immediately struck down by a supremely pissed off Chief Justice of the Supreme Court. (See what I did there? I’m so funny…) Lincoln simply ignored him. And Congress, cowering, was too scared to force the issue. “Just do what you need to do to keep us safe.” It was the first time a Supreme Court justice found an EO unconstitutional. And the first time a president ignored them.
Non-relevant historic sidenote: Lincoln issued that EO to prevent Maryland from seceding and joining the Confederacy. Take a quick look at a map. If Maryland had seceded, as it looked like they were headed for, the District of Columbia would have been completely surrounded, cut off. The Confederacy would have chopped off the head of the snake before it could strike. The war would have been over, the Confederacy triumphant, before another shot was fired. In fact, among the first casualties of the war were Union troops moving to reinforce D.C. and rioting Marylanders trying to stop them. But I digress.
The worst offenders of EO abuse were Lincoln (of course), Hoover, Truman (almost as bad as Lincoln), FDR (worse than Truman, not as bad as Lincoln), Clinton (almost as bad as Hoover), Bush (almost as bad as Truman), and (also, of course) Obama (who is FDR-bad and working diligently on surpassing Roosevelt, and is blatantly, stupendously arrogant about it). Bush has to take at least part of the blame for the Patriot Act, but since it’s legislation, he doesn’t get the “credit” for control by fiat. If the Patriot Act had been an executive order, he’d have out-gunned even Lincoln.
And again, to be fair, excluding his signature ACA debacle, Obama hasn’t really “gotten away with” much more than Clinton did. Possibly, if you compared the details, even less, actually. But Clinton was sneaky. Devious. Clever. Subtle. Obama is just clumsy and ham-handed. Or arrogant and ham-handed. Take your pick. Throw in his ACA shenanigans and agenda to “fundamentally transform”, and he’s shooting for the moon. Get out of the way, Bush. Move over, Lincoln.
Clinton didn’t announce to the world that he was going to defy Congress. He didn’t tell them, to their faces (think, State of the Union address), that he was going to damned well do as he pleased, and they better just fall in line, or else. Clinton simply and quietly went about doing whatever the hell he wanted to do, and if it came to light, waved it off as a misunderstanding – and kept on doing whatever the hell he wanted to do.
Bush drummed up war and patriotic fervor to distract the masses (Google “jingoism”), kept Congress cowering like the famous three monkeys: squatting in denial, their hands over their eyes, their ears, and their mouths – and got what he wanted. “Don’t tell us, we don’t want to know. Just save us.” The Bush dynasty has always been in bed with the industrio-military complex; that’s how they made their fortunes, all the way back to before WWII and before, and to this day see no reason to get off a winning horse, even if now they’ve been forced by circumstance to call on the thinner blood of the dynastic line.
Obama is foolish, simple, and such an arrogant sociopath he doesn’t think he needs to be subtle. And not even a Great Pretender like him can fake it realistically enough to drum up a Girl Scout cheer, let alone patriotic fervor. Socialist, progressive, collectivist fervor, oh yeah. Plenty of that. So he’s left with what he’s totally comfortable with: megalomania that rivals the world view of a three-year-old.
How is all this possible? Why is it able to happen? I hate to bad-mouth something I adore, but the reason is because the Constitution is too vague. Evidently the Founders, back when they were creating this wonderful but humanly imperfect document, were worried about setting up a situation where Congress could micro-manage the chief executive. They knew that wouldn’t be good, but it seems they never figured out any way to avoid it and still keep a reasonable rein on the president. Because of the way the Constitution is written, so vaguely and so briefly covering the duties of the president, and with little language about exactly how he’s supposed to do his job, there’s so much latitude for abuse that an impatient president can easily abuse his powers.
Or a less-than-scrupulous one.
Or a less-than-honorable one.
Or a power-mad megalomaniac.
Or a total incompetent.
Or all of the above.
And get away with it.
And too, because of the Constitutionally built-in adversarial roles of the branches of government, that whole checks-and-balances thing, the president, no matter who he is, Bush, Clinton, FDR, or Joe Blow, is never in agreement with the other branches. (Unless they kowtow to him – usually when his party has a clear majority across both chambers, but sometimes because it’s getting difficult to tell the difference between the two major parties.) So he’s almost always in a position of using his authority to skirt theirs.
The Supreme Court isn’t much help, either, since it’s damned difficult to even get a protest before them, and once you do you discover that the benches have been packed with do-nothing, special interest corporatist whores and progressives. Senile progressives, at that. You’d think that when they slam back a few too many glasses of wine, and start nodding off and drooling on their bibs at official functions somebody would “encourage” them to retire, but nooooo…..
So the answer to these six questions the Judge asked about the president is; “But he CAN. And he does, because he CAN.” If you are naive enough to believe that presidents ordering the death of American citizens without benefit of trial began with Barack Obama ordering the killing of citizens, on foreign soil, with drones, then… I have a bridge for sale I’d like to talk to you about. Obama is just the first one arrogant enough to think he doesn’t need to keep it a secret.
The President – not just THIS president – can read your texts and your emails and eavesdrop on your phone conversations, and bug your home, and incarcerate you indefinitely, and all those other evil, evil things, because the Constitution gave him implicit permission, and Congress gives him explicit permission, to do it. They’ve done it, for the most part, since Day One, and they’ll continue to do it as long as this Republic keeps struggling along.