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The Gaffer's Philosophy:
Part 83 The Executive:
December 29, 2003:
In this essay I want to take up the executive branch of government. I feel there are some huge problems that need to be rectified in the way our president is elected. There is also a problem in the way these people behave in office. There are three main areas about presidential activity that I want to look into. One is the huge tendency of recent executives to use their various departments to violate constitutional guarantees. Another is the way time and taxpayer money is wasted in campaigning and fund raising for the president and other candidates. The third is the recent tendency of politically motivated people to interfere with the executive while he is in office.
First, lets consider election reform. This is particularly important in the case of the presidency. We need new laws governing the election of the president and the term of office. Here is a very real problem. Our presidents spend more time and money campaigning and fund raising than they do in any other activity. The money spent is most often taxpayer money. The time wasted could better be spent in planning and setting goals for America. It's not like we are in great shape with our house in order and our goals and plans all laid out. We are in terrible shape in great part because we have no goals or plans.
Here is what I think we need to do. First we should change the current term of office for the executive. We could have a six year single presidential term, but only one. We can allow for partial terms by saying that a president may serve no more than nine years. Along with that, the president must be prohibited from campaigning while he is in office, for himself or anyone else. We want to return to the model established by George Washington and John Adams.
In that model the president, once elected, could simply ignore political affiliations and do what he saw as best for the nation. The president could be a true statesman. This model has been grossly distorted since Adams. That deviation began with Jefferson aided by Madison. It has grown progressively worse since then until our presidents have become completely and contemptibly political and not at all statesmanlike. As to the length of the term, I would not strongly object to a single eight year term. The big thing is, only one term. This would relieve a great deal of the temptation for the president to be political. He would have little to gain from political behavior. Of course, we would need a constitutional amendment to achieve this. I will get to that in a future essay.
Now, about the president and his cabinet using their offices
to violate civil rights. Many presidents have found excuses to
do this. The excuses range from the almost convincing to the totally
unfounded and unbelievable. One historically favorite presidential
activity is to ignore habeas corpus or to suspend it in one way
or another, often with the consent of the congress.
Okay, what the heck is habeas corpus? It is a Latin phrase literally
meaning, you should have the body. That is not as macabre as it
seems. In this case, body does not mean corpse. It just means
the person in question, usually a prisoner of some sort. In Anglo-American
law, habeas corpus is a writ issued by a court ordering that a
prisoner be brought before a court so that it may determine whether
the detention is lawful.
So far as we know, the concept originated in England sometime in the middle ages. In America habeas corpus is guaranteed by the Constitution of the United States in Article I, section 9. Here is the exact statement. "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." That seems pretty clear. The only exceptions allowed by this are invasion or rebellion. However habeas corpus has been repeatedly ignored or suspended for various other reasons and rationales.
As I said, circumventing habeas corpus has been a historically favorite game of presidents. No less a great person that Abraham Lincoln was the first president to suspend the guarantee. He did have a rebellion on his hands, so he was legally justified. However, he suspended the guarantee by executive order at the beginning of the civil war. He was challenged by the Chief Justice who maintained that only congress could suspend habeas corpus. Lincoln simply ignored the injunction and continued with his illegal activity.
FDR also ignored this guarantee when he arrested and interned thousands of Japanese American citizens at the onset of World War Two. He was later censured by the court. So what? The damage was done. The lives of thousands of innocent people were forever ruined by Roosevelt's arrogant overreaction.
Most recently, the guarantee is being most blatantly set aside by our current president. His rational stems from the tragedy of September 11. The so-called Patriot Act, passed by our rubberstamp congress, gives permission for the law enforcement community to ignore habeas corpus. So far, the courts are simply looking the other way. There is a great deal more information about this massive injustice on the American Civil Liberties Union website. http://www.aclu.org/.
We need more than a reactive response to this kind of illegal activity by the executive. We must become proactive. This is just one more reason for the creation of our Groundswell action groups. We need political power to create new laws limiting the powers of the executive. For example, the government may have cause to suspend Habeas corpus, but that should be decided by the congress, not the executive. In addition the action should be very limited and specific. After a very limited time, perhaps 20 days, the suspension should be reviewed by the Supreme Court. To be safe, we should have a constitutional amendment to spell this out.
In another area, the president should not be able to take us
into a war without a declaration of war. The executive is not
empowered to declare war. By constitutional law, only the congress
may do that. This power is assigned in section 8 of article I.
When a president says for the media that we are at war, it is
not law, it is rhetoric, nothing more. It only serves to cloak
the excesses of an overzealous government. At this time, the congress
has not declared war on anyone. However, the congress has gone
along with the executive in its activities.
This is another reason for our becoming politically active. It simply won't help to have rules controlling the president's behavior when we have a rubberstamp congress and supreme court. The balance of power has been successfully set aside. This is not the first time we have had a situation where the president became a virtual dictator. FDR managed it for several terms. We do not need any constitutional amendments to address this. We simply need ethical people in government, people who are not politically motivated.
While we must limit the excesses of the executive we also need to protect the executive from fools and people with an agenda. I believe we need laws to prevent special prosecutors and other politically or personally motivated people from interfering with the president while he is in office. It is not that the president can do no wrong. We all know better than that. It is just that the president should be concentrating on the duties of his office. He cannot do that if he is being harassed over details of his personal life no matter how sordid.
Whether the charges and investigations are true or false is not the issue. The issue is their relevance in time. We need not protect the president forever, only while he is in office. In all of the charges recently brought against presidents, none were of an urgent nature. I suspect that all were politically motivated. That is what is wrong.
If the president were to commit a felony, that would be a different matter. Then congress could act to fulfill its duties. They do have the constitutional power to impeach and remove a president from office. Here is Section 4 of Article II.
"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."
Nothing less than that is important enough to interfere with
the executive while he is in office. Only the Congress has the
authority to interfere with the President in office and then only
under very specific circumstances. No two bit special prosecutor
running a political agenda and no notoriety seeking person should
be able to interrupt the activities of the chief executive while
he is in office.
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