More on Executive Power

On Thursday, the New York Times (number one source of conversations starters for yours truly) reported on two separate rulings that interpret federal regulations to permit health benefits for same-sex partners of federal employees. The Defense of Marriage Act, a 1996 law, is at the center of the controversy and has previously been interpreted and executed as a law barring the federal government from providing such services. Richard Socarides, formerly a Special Assistant to President Bill Clinton, made this interesting comment:

“[The President] has broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination.” 

Now, I may be shooting myself in the foot by choosing a controversial topic such as homosexual rights as an example, but I think that Mr. Socarides’ statement deserves examination. For the moment, suspend knowledge that Mr. Socarides is talking about rights for homosexuals. In fact, he is not talking about the rulings described in the article at all, which have lawfully arrived at the same conclusion that Mr. Socarides would like to see. Instead, observe the relationship between the President and the rule of law. Mr. Socarides is saying that the President of the United States has authority to overrule law where the President sees fit to do so as regards the regulation of the federal bureaucracy.

Reviewing the Constitution of the United States, we find the situation to be slightly different.

Article 1, Section 8:

The Congress shall have the power… To make Rules for the Government.

Article 2, Section 3: 

[The President] shall take Care that the Laws be faithfully executed.

The President may not like the law or its interpretation, but that office does not have the discretion to interpret. The repeal or change of unfair laws must take the form of constitutional and legal processes and not through executive authority that aggrandizes the government’s power and sets precedents for unconstitutional activity.

Executive Power: Too Much

“Bush, Out of Office, Could Oppose Inquiries”

Now, before we all get out our Bush-whacking sticks, let us make a few observations.

1. This practice was made into precedent by Harry Truman, the successor to that Democrat of Democrats Franklin D. Roosevelt. So being a Democrat does not make one an historical proponent of open and accountable government.

2. There is no constitutionality to this practice, just the inability of the Congress to assert itself.

3. Many Congressmen and Senators on both sides voted for the measures against which the majority of Americans now protest.

So why does the President take the heat? Is it because the people view him as the progenitor of all policy, domestic and foreign? Well, it takes at least two to tango in this Constitution – so why do we not also hold our legislators responsible?

An Election Note

Celebations are raging, quite literally, all over the world in the wake of the election of the new American President. Voters in the States are feeling a rushing high that they have enabled Change. Democracy, indeed, is designed to make one feel that his participation creates history.

And for all the symbolism of the 2008 election, and for all the historical import attributed to it, it might be helpful to remember: Nothing has happened yet. We have symbols, we have gestures. Will we fill them in with meaning?

The Bush Legacy

Anytime a President is about to do something you do not like, but you are not going to stop him from doing it, all you have to do is say that “history will regard him as the worst president ever.” Let us lay aside the fact that when people say this, they usually mean “public opinion” and not “history.” And by “public opinion” they mean their opinion, which is usually the only one that they care about anyway.

And we have repeated this process enough times from, say, John Adams onwards that the moniker has stuck at least once. To tell you the truth about it, I like the idea that history will take revenge on someone’s reputation after they have shed this mortal coil. But I am not naive enough to think that history always gets it right, or that it even matters who reigns supreme in the kingdom of worst presidents.

Yet, as we hurtle shakily towards the 20th of January, we may find ourselves with boiling blood and steam pumping out of our ears when we think about the past eight years of Bush administration. I need not remind you, faithful Dino-Readers, of our recent history in the Middle East, in New Orleans, in sub-prime mortgage regulation. Many of us feel secure, now, in the notion that finally the title will stick and Mr. Bush will become the worst president in all of history.

When lo and behold, rearing its ugly head into our airspace, comes this opinion piece by Prof. Stanley Fish, currently Professor of Humanities and Professor of Law at Florida International University, as well as Dean Emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago. Disregarding Prof. Fish’s critical lack of adherence to any logical system of thought in his postmodernist scholarship, could he be right that George W. Bush will wiggle his way into our hearts when we no longer feel obligated to hold him responsible (for the many things in which we were complicit)?

Unfortunately, I think the answer is yes. Consider it a reversal of what happened to Harry S. Truman and Winston Churchill. They, along with Franklin D. Roosevelt, are the greatest war-time politicians of the 20th century (and perhaps of all time – only being rivaled by Abraham Lincoln, at least on this side of the Atlantic). They enjoyed supreme unity amongst their fellow-citizens during the war, but once there was peace they quickly found themselves out of jobs. Come to think of it, the same thing happened to old Themistokles – he rose to prominence on his naval construction program platform, and after the navy won the Persian War he quickly fell from favor and eventually resettled in Persia itself (imagine if the old Bulldog bought a condo in Stalingrad!). They were good wartime leaders, and once their nations had used them for that, they were out the door before you could muster a “blood, sweat, and tears” speech.

Now George Bush will leave office in the wake of strong criticism during the entrenched battle that was his administration. Without any responsibility, and therefore no reason to blame him for anything, we may yet embrace him as that funny sounding Texan with the boyish swagger. Maybe Prof. Fish will be proven wrong and our disgust for Mr. Bush will remain. But the cogs of history are slow to work, slow to judge: the machinations of the courtroom of history click and whistle and belch up hot air for much time before a verdict, if ever, is handed down from the ivory tower jury.