Thursday, November 10, 2011

What is Executive Power?

"Power tends to corrupt, and absolute power corrupts absolutely." – Lord Acton

Recently, the President made the following statement: “I’m here to say that we can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.”

This statement is intended to reflect the image of an increasingly gridlocked Congress so ineffectual that only an American President can act. Is it true? Is Congress dysfunctional or is the President seeking to denigrate reasoned opposition to his policies? And, more importantly, is the President’s goal really to get something done, to win the next election or to turn our nation into a dictatorship?

Is the President the only person today who has the moral power to act? Is it really as simple as that? Will the history books tell future students about the courage of our President or his deviousness? Will they examine his deep personal struggle on behalf of the poor or his cynical power play?

We must remind voters that in times past, in particular, during the days leading up to World War II, the European nations had a similar debate. Parliamentary bodies in several European countries were vilified by radicals who favored sweeping aside parliamentary government in favor of dictatorship. During those times, the idea of dictatorship did not have the negative connotation that it does today; it was viewed as a viable option for some nations. Some argued that one man, with the power and charisma to move people, could better implement the will of the people. This man, freed from the shackles of parliamentary weakness, could be the key to making things happen.

Needless to say, two of these men, Mussolini and Hitler, wreaked havoc on Europe, joining a small group of the most hated and murderous men in world history. The absolute power they were given corrupted the entire planet absolutely. Today, we see one-man-rule, not as a saving idea but as a deadly one. At least we did until we got our own charismatic leader with a will of his own. So let’s look a little closer at the issue of whether we are becoming a dictatorship.

First, let’s examine some important principles upon which our government was founded. The first principle is called “checks and balances”. defines checks and balances as “a system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power.”(1)

Keep in mind that the goal of checks and balances is to limit power. No branch of government should have the power to dictate government action, which means to unilaterally write laws without approval and input from the other branches and from the source of government, the people. In short, unilateral action by any branch or individual is prohibited by the framers of the Constitution. If the President cannot get Congress to act as he would like, then he must desist until he can convince the people of the wisdom of his recommendations. He cannot simply go ahead and act. To do so would violate the purpose of government which is to protect the rights of citizens. Ours is a system of laws, not of men.

You might say that the present situation is too dire to allow Congress to dawdle while people suffer. You must ask yourself, if the President knows this, why doesn’t the Congress also know it? Why don’t they see the wisdom of the President’s position and make an effort to act; to do their job? The truth is that Congress also realizes that the situation is dire and has passed several proposals that are presently being blocked by the Senate. What the President calls dysfunction is nothing more than checks and balances. The Congress does not agree with the President’s “solutions” to the crisis and is therefore blocking his proposals. By doing little about the President’s proposals, the Congress is checking the power of the President to act in a way they do not approve. In fact, the Senate is blocking the actions of the House of Representatives and both houses are blocking the proposals of the President. Doing nothing is sometimes a legitimate response in a free country. This means the checks and balances are working.

Consider that the President’s proposal, his so-called American Jobs Act, has a strong re-distribution component that many in Congress see as harmful to our nation. They point to numerous examples of re-distribution in the past to show that re-distribution causes economic distortions and lost jobs. In fact, a case can be made that re-distribution, as for instance in the sub-prime crisis, is what caused our economic troubles in the first place. For the President to introduce more re-distribution is analogous to a doctor trying to cure a poisoned patient by giving him more poison.

As Thomas M. Cooley wrote in 1908, "The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority."(2)

This means that legitimate authority does not spring from the President alone but from the governmental body closest to the people; the Congress. If the legislative bodies refuse to pass something the President wants, it in no way means that they are dysfunctional. They are, in fact, performing their constitutional responsibility.

To carry the President’s logic forward, he is saying that the people are dysfunctional, that they have lost control of their representatives and that he alone should act. Is this true? Remember, in 2010 the people elected a new Congress and Senate and they brought into government a large number of people who campaigned against President Obama’s policies of deficit spending, health care and stimulus programs. If Congress is opposing the President’s policies and legislative agendas, then Congress is doing what the voters instructed them to do; which is to obstruct the President in advancing his agenda. It is the President’s responsibility to acquiesce to the will of the people, to get the message of the last election and to desist from deficit spending, regulatory programs and his health care program.

"Every government degenerates when trusted to the rulers of the people alone. The people themselves are its only safe depositories." – Thomas Jefferson 1781

The second principle is called “separation of powers”. This is “the principle or system of vesting in separate branches the executive, legislative, and judicial powers of a government.”(3) In our system, the executive branch is responsible for seeing to it that the laws of the land are enforced. The House of Representatives is responsible for writing those laws while the Supreme Court is responsible for interpreting those laws. The Senate is responsible for advice and consent to the Executive.

If one branch of government attempts to operate in an area which is not within its range of powers, legal procedures as well as the Supreme Court should intervene and put a stop to it.

There is nothing in the Constitution about any form of unilateral Executive Power. For instance, Section 2 of Article 1 delegates to the Executive the power to issue writs of election to fill vacancies of elected representatives. Section 3 of Article 1 discusses additional Executive powers regarding Senatorial vacancies.

Article 2 Section 1 spells out the nature of Executive Power.

“1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows”… It goes on to discuss the procedures for the election of the President and Vice President.

At this point in our examination of the Constitution, we’ve only been told that there is such a concept as “Executive Power” but the Constitution has not yet defined that power. There is no implication that such power is in any way like the power of any other branch or that there are overlapping powers.

We find out what real Executive Power is in the next paragraph Article 2 Section 2:

“Section 2

1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

There is nothing here that gives the President the power to make law, to issue decrees or otherwise make decisions that overlap with decisions that are the Constitutional province of any other branch. It says, simply, that the President “shall take Care that the Laws be faithfully executed”. We still do not have any justification for unilateral Presidential action.

It has been argued that the mere mention that the President has “Executive Power” is a justification for unilateral action. There is no reason to make that assumption and any effort to act upon that assumption should be roundly challenged.

A major “power” or responsibility of the President is discussed in Section 7:

“2: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

Again, we have no justification for unilateral action by the President. There is no mention of an “Executive Order” in the Constitution. Yet, we read elsewhere:

“The president:
• is the Commander in Chief of the armed forces. He or she has the power to call into service the state units of the National Guard, and in times of emergency may be given the power by Congress to manage national security or the economy.
• has the power make treaties with Senate approval. He or she can also receive ambassadors and work with leaders of other nations.
• is responsible for nominating the heads of governmental departments, which the Senate must then approve. In addition, the president nominates judges to federal courts and justices to the United States Supreme Court.
can issue executive orders, which have the force of law but do not have to be approved by congress.
• can issue pardons for federal offenses.
• can convene Congress for special sessions.
• can veto legislation approved by Congress. However, the veto is limited. It is not a line-item veto, meaning that he or she cannot veto only specific parts of legislation, and it can be overridden by a two-thirds vote by Congress.
• delivers a State of the Union address annually to a joint session of Congress.”(4)

What happened? Where did this come from? The only mention of “executive orders” I find in the Constitution is the power to issue pardons and reprieves. Our friends at Cornell try to explain:

“In times of emergency, the president can override congress and issue executive orders with almost limitless power. Abraham Lincoln used an executive order in order to fight the Civil War, Woodrow Wilson issued one in order to arm the United States just before it entered World War I, and Franklin Roosevelt approved Japanese internment camps during World War II with an executive order. Many other executive orders are on file and could be enacted at any time.”(5)

So, it appears that “Executive Orders” are justified by precedent alone. Lincoln just began issuing them and no one challenged him (except the south, of course). The fact that Lincoln, Wilson and Roosevelt issued Executive Orders is given as a justification for the acts of any President who thinks it is appropriate to issue an Executive Order. Yet, these Executive Orders, according to Cornell, are issued only during times of emergencies.

It appears that the framers of the Constitution wanted the legislative authority to reside with the people; so they determined that the power to make law was vested in the House of Representatives. It was not given to the Executive for a good reason; they knew that eventually the Executive would turn that power into a dictatorship. Thomas Jefferson said it best:

"Every government degenerates when trusted to the rulers of the people alone. The people themselves are its only safe depositories." 1781

and “Unless the mass retains sufficient control over those entrusted with the powers of their government, these will be perverted to their own oppression, and to the perpetuation of wealth and power in the individuals and their families selected for the trust.” 1812

As Martin and Caul explain:

“The greatest fear the founders of this nation had was the establishment of a strong central government and a strong political leader at the center of that government. They no longer wanted kings, potentates or czars, they wanted a loose association of States in which the power emanated from the States and not from the central government.

John Adams advocated that a good government consists of three balancing powers, the legislative, executive and the judicial, that would produce an equilibrium of interests and thereby promote the happiness of the whole community. It was Adams' theory that the only effectual method to secure the rights of the people and promote their welfare was to create an opposition of interests between the members of two distinct bodies (legislative and executive) in the exercise of the powers of government, and balanced by those of a third (judicial).”(6)

To understand why “Executive Orders” were not countenanced by the Constitution, we must understand that the Constitution, apart from being a “legal” document is also a moral document. It holds implicitly that the moral is the practical; that free people have the power to make their own decisions and act on their own behalf.(7) It held that individual rights were not only moral but also practical. They were inviolable. Living independently of government control meant living morally and therefore, no single man, not even the President, could hold the authority to unilaterally dictate to any other man. Dictatorship was viewed as an immoral form of government that had disastrous consequences for society.

The Founders saw that individual rights, political freedom and the other rights they acknowledged in the Constitution were issues of morality, issues that reflected the individual's responsibility to himself. So, in order to protect the rights of men to live freely, without coercion, the branches of government had to be restricted and controlled, powers had to be separated and balanced…as a matter of having a government that respected the freedom of individuals to make their own moral decisions. Coercion, the forcing of a man against his will, was considered immoral and improper, not only when done by one individual to another but also when done by government toward citizens. The idea of one man, not accountable to the people, with the power to issue unilateral orders, to make laws, was considered coercive and dictatorial. Such unilateral action was outside the bounds of proper government. Further, the final check against government power is the power of the people to approve or reject the proposals of the government. Executive Orders eliminate that important check and corrupt the broad principles of the Constitution.

Yet, it was Andrew Jackson who began usurping the Constitution, not Lincoln.

“President Andrew Jackson used executive powers to force the law-abiding Cherokee Nation off their ancestral lands. The Cherokee fought the illegal action in the U.S. Supreme Court and won. But Jackson, using the power of the Presidency, continued to order the removal of the Cherokee Nation and defied the Court's ruling. He stated, "Let the Court try to enforce their ruling." The Cherokee lost their land and commenced a series of journeys that would be called The Trail of Tears.

President Abraham Lincoln suspended many fundamental rights guaranteed in the Constitution and the Bill of Rights. He closed down newspapers opposed to his war-time policies and imprisoned what many historians now call political prisoners. He suspended the right of trial and the right to be confronted by accusers. Lincoln's justification for such drastic actions was the preservation of the Union above all things. After the war and Lincoln's death, Constitutional law was restored.

In 1917, President Woodrow Wilson could not persuade Congress to arm United States vessels plying hostile German waters before the United States entered World War One. When Congress balked, Wilson invoked the policy through a Presidential Executive Order.

President Franklin Delano Roosevelt issued Executive Order No. 9066 in December 1941. His order forced 100,000 Japanese residents in the United States to be rounded up and placed in concentration camps. The property of the Japanese was confiscated.

Both Lincoln's and Roosevelt's actions were taken during wartime, when the very life of the United States was threatened. Wilson's action was taken on the eve of the United States entering World War One. Whether history judges these actions as just, proper or legal, the decision must be left to time. The dire life struggle associated with these actions provided plausible argumentation favoring their implementation during a time when hysteria ruled an age.”(8)

An argument can be made that none of these acts were proper; that they represented a usurpation of the powers delegated to the President and they violated the intent of the Constitution as well as the oath of office. Certainly, today, most of us see the actions of Jackson as unjustified. He clearly violated the individual rights of the Cherokee people. He used government force against individual Americans which was a criminal act every bit as evil as anything done by Hitler. He should have granted to the Cherokee nation their victory under the Constitution. Through his unilateral decision, Jackson put our nation on a “slippery slope” that is getting more slippery by the day.

But Lincoln had a unique situation. He was involved in the only civil war ever to hit the United States of America. The very survival of the Union, as it was founded, was at stake. One could say that Lincoln needed to protect the integrity of our system and that harsh measures were needed against those who would destroy our nation. Yet, one could also argue that the Civil War would have been won without these Executive Orders. The industrial might of the North and the specific battles won by the North would probably have been won without those orders by Lincoln. Shutting down newspapers may have made little difference to the outcome of the war.

Yet, we must ask ourselves: "If the principles of the Constitution are made to apply during peace time, why don’t they apply during war?" If the moral is the practical, aren’t emergency situations times when we need our principles the most? Were there other legal options that Lincoln could have taken to accomplish the goals behind his Executive Orders? Would these not have been preferable to establishing a precedent that violated the Constitution? Remember, an Executive Order violates the individual rights of every citizen purely on the basis of the fact that it circumvents the power of the people to approve laws. By circumventing this power, the President is circumventing the individual rights of the citizens.

One could also argue that Wilson’s order was entirely within his responsibility as Commander in Chief of the military and that an Executive Order was not necessary. One could also say that Roosevelt’s order, though a violation of the Individual Rights of Japanese citizens, was also within his mandate to protect the borders of the country (I disagree with that position). Perhaps, not wise, these orders may have been defensible before the Supreme Court due to the responsibility of the President to be Commander in Chief.

What is an emergency that is so important that the Constitution can be disregarded? One has to understand why it is important that government powers cannot overlap; why did the Founders believe the principle was so important that they virtually prohibited the Executive from violating these divisions of powers? And, since they did not identify any circumstance that could be an “emergency” or “exception to the rule”, why do we think that such emergencies or exceptions give us the authority to violate the Constitution today?

An Executive Order, if it constitutes anything other than a pardon or reprieve by the Executive, is unconstitutional. The Founders did not intend that the separation of powers and checks and balances should EVER be violated. Furthermore, the violation of these principles was undertaken without justification, without a law enacted by Congress and without the advice and consent of the Senate and, when it was tested by the Cherokee Nation, the Supreme Court agreed that Jackson’s Executive Order was unconstitutional.

When a people considers the violation of the separation of powers to be necessary, what is it saying? What is the philosophical implication of such an idea? As mentioned before, the Constitution holds that individual rights are inviolable. It holds that a moral government is one which honors the rights of the people to life, liberty and the pursuit of property. It holds that no emergency could ever justify the violation of individual rights. So how could Jackson, Lincoln, Wilson, Roosevelt and Obama think that they could violate individual rights by a mere Executive Order?

The flaw in their reasoning is a long-standing principle that has brought much evil into the world. Those Presidents who issue Executive Orders operate according to a philosophy that holds the moral to be impractical. They hold morality to be self-sacrificial and therefore impractical. They see anyone living a "moral" life to be inept and unworthy. In other words, they do not understand that the principles of the Constitution are universal principles that apply to all men for all times and that they work to create a better, practical and affluent society. They see the moral person as weak. They believe that the principles of the Founders are inferior to a broader, and to them more practical, principle. Their view that the end justifies the means enables them to brush aside the rights and morality of individual men trying to live good lives. They hold, implicitly, that it is proper to violate peoples’ rights because only force is practical; only force can accomplish anything worthwhile.

They should ask themselves the question asked by the Founders: Are the coercive acts practiced by potentates, generals, kings, queens and emperors superior to those of individual freedom and the universal rights of man? Isn’t our Constitution telling us that there are no circumstances where individual rights take second place to force exerted by government? Aren’t the Founders telling us that there is never a proper time to disrespect men?

We cannot merely say that because Jackson and other Presidents established the precedent of Executive Powers we should not quibble about our present office holder when he continues the precedent. On the contrary, a bad precedent must be overturned and the integrity of the system must be restored lest dictatorship become the order of the day. We must tell our leaders that there is no circumstance that justifies the arbitrary and artificial suspension of our rights. The end does not justify the means.

To understand the danger of Executive Orders and why we must restore the integrity of our system, let’s look at some of the Executive Orders that have been issued over the last few years. These examples are provided by Martin and Caul.

“A Presidential Executive Order, whether Constitutional or not, becomes law simply by its publication in the Federal Registry. Congress is by-passed. Here are just a few Executive Orders that would suspend the Constitution and the Bill of Rights. These Executive Orders have been on record for nearly 30 years and could be enacted by the stroke of a Presidential pen:

• EXECUTIVE ORDER 10990 allows the government to take over all modes of transportation and control of highways and seaports.
• EXECUTIVE ORDER 10995 allows the government to seize and control the communication media.
• EXECUTIVE ORDER 10997 allows the government to take over all electrical power, gas, petroleum, fuels and minerals.
• EXECUTIVE ORDER 10998 allows the government to take over all food resources and farms.
• EXECUTIVE ORDER 11000 allows the government to mobilize civilians into work brigades under government supervision.
• EXECUTIVE ORDER 11001 allows the government to take over all health, education and welfare functions.
• EXECUTIVE ORDER 11002 designates the Postmaster General to operate a national registration of all persons.
• EXECUTIVE ORDER 11003 allows the government to take over all airports and aircraft, including commercial aircraft.
• EXECUTIVE ORDER 11004 allows the Housing and Finance Authority to relocate communities, build new housing with public funds, designate areas to be abandoned, and establish new locations for populations.
• EXECUTIVE ORDER 11005 allows the government to take over railroads, inland waterways and public storage facilities.
• EXECUTIVE ORDER 11051 specifies the responsibility of the Office of Emergency Planning and gives authorization to put all Executive Orders into effect in times of increased international tensions and economic or financial crisis.
• EXECUTIVE ORDER 11310 grants authority to the Department of Justice to enforce the plans set out in Executive Orders, to institute industrial support, to establish judicial and legislative liaison, to control all aliens, to operate penal and correctional institutions, and to advise and assist the President.“(9)

These orders listed above were issued by previous Presidents. Let’s look at some issued by President Obama.

2009 Executive Orders Disposition Tables
Barack Obama – 2009

Executive Order 13489 Presidential Records
Executive Order 13490 Ethics Commitments by Executive Branch Personnel
Executive Order 13491 Ensuring Lawful Interrogation
Executive Order 13492 Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Close of Detention Facilities
Executive Order 13493 Review of Detention Policy Options
Executive Order 13494 Economy in Government Contracts
Executive Order 13495 Nondisplacement of Qualified Workers Under Service Contracts
Executive Order 13496 Notification of Employee Rights Under Federal Labor Laws
Executive Order 13497 Revocation of Certain Executive Orders Concerning Regulatory Planning and Review
Executive Order 13498 Amendments to Executive Order 13199 and Establishment of the President's Advisory Council for Faith-Based and Neighborhood Partnerships
Executive Order 13499 Further Amendments to Executive Order 12835, Establishment of the National Economic Council
Executive Order 13500 Further Amendments to Executive Order 12859, Establishment of the Domestic Policy Council
Executive Order 13501 Establishing the President's Economic Recovery Advisory Board
Executive Order 13502 Use of Project Labor Agreements for Federal Construction Projects
Executive Order 13503 Establishment of the White House Office of Urban Affairs
Executive Order 13504 Amending Executive Order 13390
Executive Order 13505 Removing Barriers to Responsible Scientific Research Involving Human Stem Cells
Executive Order 13506 Establishing a White House Council on Women and Girls
Executive Order 13507 Establishment of the White House Office of Health Reform
Executive Order 13508 Chesapeake Bay Protection and Restoration
Executive Order 13509 Establishing a White House Council on Automotive Communities and Workers
Executive Order 13510 Waiver Under the Trade Act of 1974 With Respect to the Republic of Belarus
Executive Order 13511 Continuance of Certain Federal Advisory Committees
Executive Order 13512 Amending Executive Order 13390
Executive Order 13513 Federal Leadership on Reducing Text Messaging While Driving
Executive Order 13514 Federal Leadership in Environmental, Energy, and Economic Performance
Executive Order 13515 Increasing Participation of Asian Americans and Pacific Islanders in Federal Programs
Executive Order 13516 Amending Executive Order 13462
Executive Order 13517 Amendments to Executive Orders 13183 and 13494
Executive Order 13518 Employment of Veterans in the Federal Government
Executive Order 13519 Establishment of the Financial Fraud Enforcement Task Force
Executive Order 13520 Reducing Improper Payments
Executive Order 13521 Establishing the Presidential Commission for the Study of Bioethical Issues
Executive Order 13522 Creating Labor-Management Forums to Improve Delivery of Government Services
Executive Order 13523 Half-Day Closing of Executive Departments and Agencies on Thursday, December 24, 2009
Executive Order 13524 Amending Executive Order 12425 Designating Interpol as a Public International Organization Entitled To Enjoy Certain Privileges, Exemptions, and Immunities
Executive Order 13525 Adjustments of Certain Rates of Pay
Executive Order 13526 Classified National Security Information
Executive Order 13527 Establishing Federal Capability for the Timely Provision of Medical Countermeasures Following a Biological Attack

To be “fair” here’s a list of how many Executive Orders were issued by President Bush:

Disposition of Executive orders signed by President George W. Bush:
• Subject Index
• 2009 - E.O. 13484 - E.O. 13488 (5 Executive orders issued)
• 2008 - E.O. 13454 - E.O. 13483 (30 Executive orders issued)
• 2007 - E.O. 13422 - E.O. 13453 (32 Executive orders issued)
• 2006 - E.O. 13395 - E.O. 13421 (27 Executive orders issued)
• 2005 - E.O. 13369 - E.O. 13394 (26 Executive orders issued)
• 2004 - E.O. 13324 - E.O. 13368 (45 Executive orders issued)
• 2003 - E.O. 13283 - E.O. 13323 (41 Executive orders issued)
• 2002 - E.O. 13252 - E.O. 13282 (31 Executive orders issued)
• 2001 - E.O. 13198 - E.O. 13251 (54 Executive orders issued)

291 Total Executive orders Issued by President Bush.(10)

Do we have an enormous problem here? Were you informed of any of these Executive Orders? Would you have approved them had you been asked? Shouldn't there have been open debate about these orders? Doesn't the issuance of these Executive Orders circumvent the responsibility of Congress to write the laws of the land? Don't they circumvent the responsibility of the Senate to advise and consent? Where is the Supreme Court on this? Doesn't the Tenth Amendment to the Constitution state: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It does not state that they are reserved to the President.

How is it possible that we have forgotten a key principle of government, the unraveling of which threatens our very freedoms and survival? How can we survive as a free people when the government can do whatever it wants?

Did the Constitution want the Congress to be dysfunctional? The answer is “yes”. It did not countenance a Congress that was efficient because it saw "efficient force" as a violation of the rights of the citizens. The framers saw the citizens as the main protectors of their own freedoms and they sought to give the most power to the people as a check on the acquisition of power by the other branches of government.

The framers intended that the government be, in a sense, gridlocked, incapable of doing anything not checked by the people. If the people tell their representatives (through the vote) “no more deficit spending” that meant the Congress could not approve deficit spending. It could not write or pass any laws that enabled such spending. This is the simple practical protection of the Constitution; but the principle that made this possible is the philosophical idea that “all men are created equal”, that it was the responsibility of the government to protect, not violate, individual rights. Any violation of the Constitution was a dereliction of responsibility on the part of the violator.

We must understand this issue; so I’ll state it again: Any violation of the Constitution is a violation of individual rights. Whenever Executive Orders are issued, the rights of the citizens to approve or reject the actions of government are violated. The Constitution is written to protect individual rights and, one of those rights is the right to check the power of government. An Executive Order constitutes a deliberate dictatorial act against the people.

The proper action for the President, when he decides that a specific government action should be taken, should not be whether to write an Executive Order or ask Congress to write a law. The President's power extends only to the act of convincing the people to act through the legislature. That is the proper challenge put forward by the Constitution. If he cannot convince the people, he cannot issue an Executive Order. This is demanded by his oath of office to defend the Constitution.

Put another way: the Constitution is intended to provide the protocols that guide the proper actions of government. First, the President is required to report on the State of the Union to joint sessions of Congress and he is required to present, during this speech, any proposed legislation he would like to put forward. There is no provision in the Constitution for the President to declare that Congress is dysfunctional and therefore he will act alone. Such a declaration violates the constitutionally mandated protocol for making change; it is a declaration that the people are no longer wise enough to run their government and that their representatives are inept. The statement made by the President that he will act alone is improper. There is no accommodation for such action in the Constitution.

The early Executive Orders of past Presidents added fuel to one of our nation's oldest debates about government powers. We cannot base governmental action on emergencies and I submit that there are other “legal” ways to accomplish proper action without violating the Constitution. Those methods include honoring the intent and procedures established in the Constitution.

Government action is supposed to be slow. Most often, deliberation and open debate make for better laws, more thoughtful laws, and they prevent a demagogue from steamrolling his or her own agenda. Having a proper government is important and we must take the time necessary to respond to real problems without creating additional other problems through hasty action. The power of the President to issue Executive Orders must be abolished.

President Obama is the only President in modern times who has openly declared his intent to circumvent Congress. In many respects, especially in his unwillingness to compromise with Congress before and after the 2010 elections, he is involved in an intense war against the Constitution and against freedom. The crisis the President declares is one of his own making; one undertaken, either as a deliberate strategy, or as a haughty response to the outrage expressed by the Tea Party over his deficit spending and Health Care Programs. This makes him a dangerous President who must be confronted in the voting booth and made to desist. The American people must intervene, or should I say, they should take their government back.

The President is declaring that Congress is dysfunctional because members of Congress disagree with his policies. The President is using his bully pulpit to insult the intelligence of the American people. To declare that he is the only adult while the rest of the nation is acting like children is to paint over the real ideological and economic principles that divide left and right today. To paint over the disagreement on the proper use of government power denies the real debate we should be having; the debate between those who would use coercion against man (the left) and those who would respect man’s rights and freedoms (Tea Party members).

To answer the question, “Are we a dictatorship?” the answer is “almost”. The President is making a serious effort to defeat his “loyal opposition” by discrediting its motives and continuing with his coercive agenda in spite of the will of the people. By declaring Congress dysfunctional, the President is playing politics with our Constitution. If he truly wants to act for the sake of the nation, he will desist from issuing Executive Orders that advance his unpopular agenda. The people have spoken; it is time for him to listen.

As citizens, we must be vigilant and watch every move made by the Executive Branch. At the present time, the precedent for dictatorship is in place. The President now has the authority to do anything he desires regardless of Constitutional constraints, division of powers and checks and balances. There is nothing that can stop him from declaring Marshall Law, cancelling the elections and declaring his intent to rule by decree. The only political force that can stop him is the people.

The first thing they should do is ensure that this election is a fair one. They should challenge the cadre of vote fraud experts that the President has unleashed. They should monitor the election and ensure that the registration process is not fraught with registration fraud. This leads to stuffed ballots. They should vote in huge numbers to declare their opposition to dictatorship and to ensure that the left is completely disenfranchised. And, once we regain our government, they should fight against any conservatives and neo-cons who want to take advantage of the situation to install a theocracy. Finally, they should advance two Constitutional Amendments: 1)to abolish the power of the President to issue Executive Orders, to submit all previous Executive Orders to the Congress for a vote, and 2)to declare a separation of government and economics; to get the government out of the cronyism business.

They should also institute a new rule in Congress that prohibits Congress from handing over its power to write laws to other agencies or departments of the government.

We can thank the Tea Party movement for standing up. So far, they have slowed the advance of dictatorship. The real political battle is ahead.

(2)Treatise on the Constitutional Limitations…p. 56

(6)“The Executive Order”
(7)For an excellent discussion of the idea that the moral is the practical, read "Capitalist Solutions" by Andrew Bernstein
(10)All data found at:

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