Tags: obama | congress | constitution | harry truman | teddy roosevelt

Our Lawless Executive Branch Was Generations in the Making

Our Lawless Executive Branch Was Generations in the Making

(Olivier Douliery-Pool/Getty Images)

By Friday, 30 September 2016 11:03 AM Current | Bio | Archive

In December 1907, President Teddy Roosevelt sent a modernized U.S. navy on an around-the-world tour designed to demonstrate new American power. Roosevelt had discussed the action with few people; he was making policy out of his back pocket.

When Congress belatedly discovered Roosevelt’s plan, members grumbled and threatened, but Roosevelt sent the navy around the world anyway. He said that he had sufficient money in the coffers, and if later, more money was required, Congress could decide if they wanted to bring the navy back or leave it sitting half-way around the world.

Many presidents or their administrations, on occasion, have exceeded the power given them by the Constitution or Congress. President Harry Truman seized the nation’s steel mills to keep them operating. Later, the Supreme Court decided Truman had acted unconstitutionally. President Nixon refused to spend money Congress had appropriated, so Congress passed an Impoundment Act, making it illegal not to spend the money.

The 1787, writers of the U.S. Constitution intended the president and the entire executive branch not to dominate government. The framers hoped to create a balance of power among a Congress, a court system, and an executive, and above all, after their experiences with the King of England, they wanted to limit the power of the president. After more than 200 years, presidential power appears to dominate congressional power, and significantly, has expanded central government power at the expense of state and local government power. The framers would be astonished and saddened.

Presidential power has increased because of several factors. One is the massive growth in the size of the executive branch. The presidency began with four cabinet departments and a relatively small number of additional appointments. With steady increases in staff, by 1816 there were 4,837 central government employees and by 1861 the number was 36,672 civilian employees. By the 1990s the number of civilian employees went over 3 million, and since, it seems to fluctuate near this latter number. The size of government, by itself, can be mobilized to make a large impact; for example, merely buying new desk top computers for several million employees has an impact.

For much of the nineteenth century, although size of government increased from the early decades of the nation, government function changed little. For example, the growth up to 1861 was substantial, but 86 percent of it was postal employees; these employees delivered mail — the function did not change from 1816 to 1861. In the 1880s, new laws and organizations were created by Congress to manage a new burgeoning economy and society, fueled by railroads, steel mills, oil, the telegraph, and telephone, and host of powerful new businesses. In short, national bureaucratic offices created by Congress were allowed to make rules, ie., laws and regulations, guided only by broad outlines set forth by Congress. In so doing, the central government then reached down into many aspects of American life. The 1929 depression and world wars caused more government growth. The change of function of this growing bureaucracy substantially advanced the power of the central government.

The rub of this new bureaucracy in the increasingly complex society, beginning in the 1880s, was that it was making policy — rather than the Congress, whose constitutional job it was to pass laws. Indeed, the new agencies and offices were created by laws that provided a broad outline of legislative intent, but as many say, "the devil is in the details." The details of policy decisions and adjudication of compliance was handled by agencies. The legality of Congress to pass a large part of its decision making power to a bureaucracy was troubling and questioned. The Supreme Court decided the matter in the 1935 Schechter Poultry Case by saying Congress could pass laws with broad guidelines that would permit administrative agencies to make law-like rules.

Congress did not relinquish all of its ability to control how the executive operated. The Constitution gives Congress the power to hold hearings that investigate administrative agencies, pass new laws to reverse or alter agency actions, create or end the life of an agency, and appropriate the money to operate. Congress has the constitutional authority to impeach in the House and convict in the Senate executive branch officials, and thereby remove them.

Nevertheless, in the modern era, the president’s control of the vast bureaucracy can be a problem. Presidents appoint the people who command this bureaucracy, and in some cases, the president appoints political liaisons to high-level slots at the top of the various executive offices. In short, expansion of bureaucratic power offers the possibility of presidents to leverage their power in ways the writers of the Constitution never imagined. A president who chooses to exercise maximum control over the bureaucracy, particularly a ruthless and corrupt president, can do so, and unfortunately, the president can encourage and lead the administrative agencies to do oppressive, undemocratic, unpatriotic, and illegal actions.

In reaction to Richard Nixon’s presidency and what was considered Nixon’s illegal activities, Congress passed the Ethics in Government Act of 1978. This law provided for an appointment of a special prosecutor, independent and apart from the normal operation of the attorney general controlled by Justice Department. According to the 2013 Congressional Research Service report, Congress can structure a process to select a special prosecutor, but Congress cannot do the appointing of the special prosecutor. Regardless of the specific method and terminology involved, the attorney general, appointed by the president, is usually given a role in the creation of the prosecutor. With such an arrangement, there remains presidential influence and control of any outside legal investigation of the executive branch. And a Justice Department, operating like a puppet on a string, with the president as puppet master, can block legal actions against a runaway, lawless president and executive branch. It is a fatal flaw in the U.S. Constitution that the president’s Justice Department is the major path to legal recourse against a lawless president. In short, the executive branch is left to investigate itself, or in other words, the wolf is in the hen house.

The situation could become even worse if the president has cohorts in the Congress, sufficient either to control at least one branch or block measures of a majority. Under these circumstances the central government is literally then dominated by an oligarchy of politicians, led by the president. And if the president disregards existing laws, violates the Constitution, and does so on a regular basis, there is almost no method of recourse. The worst fears of the framers of the Constitution have come to pass: a lawless president, resulting in a lawless, powerful central government.

It could be argued that the president and Congress were democratically elected by the people, and therefore, the officials have the blessing to do as they wish; of course many would argue doing what officials choose does not include unconstitutional and illegal actions. And it should be remembered James Madison’s cautions about majorities — and how even majorities can be oppressive, ruthless, and destroy freedom. Yet, if it is a powerful executive branch, supported by a corrupt, ethically challenged contingent in Congress, what is to be done?

One possibility is to change the law; mere statute passed by Congress may not offer a legal solution; an amendment to the Constitution may be needed, but amendments have been added in the past. As with the amending process of the Constitution, the appointment of a special prosecutor could possibly be achieved by constructing several different methods. One such method could be to enlist the help of an important feature of the United States Constitution: a federal system.

A federal system is intended to divide political power between the central government and the state and local governments. Over the last two hundred years, state and local government power has weakened and central government power has increased; nevertheless we still have a federal system and it should be enlisted to check the power of the central government. The proposal here is to craft a Special Prosecutor Law, as follows:

If twenty state Attorney Generals sign a document indicating the need for a special prosecutor, these twenty may proceed as they choose (subcommittee, etc.) to organize, select a prosecutor, and staff.

The funding should be automatic and instantly accessible under the law. This prosecutor will have all the powers enjoyed by a Justice Department special Prosecutor.

The details of this proposal may be revised. Perhaps the number of states needed for a special prosecutor could be lowered or raised; however, twenty states is forty percent and this percentage represents a substantial hurdle — twenty states surely reflects a serious matter. To have fewer than a majority of states harks back to Madison’s view that a majority, particularly in highly political matters, is not necessarily a guarantee of proper policy; at the founding there was concern that three large states possibly could dominate ten, so forty percent appears to be a reasonable quantity. In fact, it could be lowered to fifteen or seventeen to make it easier for a minority of states to protect freedoms from a lawless central government and president.

Clearly there are many scenarios of possible executive, central government malfeasance, but there should be a mechanism to bring legal measures to a lawless executive and Justice Department that is in the back pocket of a lawless president. Even a minority of citizens living in the less populous states deserve to have their freedoms protected from an oppressive central government. At the moment there is no meaningful method of protection against central government lawlessness.

John Havick has a Ph.D. in political science. He was a professor at Georgia Institute of Technology for many years, authored several books and a number of articles, including the widely cited "The Impact of the Internet on a Television-Based Society." His work has appeared in The New York Times, and his recent book, "The Ghosts of NASCAR: The Harlan Boys and the First Daytona 500," is available at ghostsofnascar.com. For more of his reports, Go Here Now.

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Many presidents or their administrations, on occasion, have exceeded the power given them by the Constitution or Congress. President Harry Truman seized the nation’s steel mills to keep them operating. Later, the Supreme Court decided Truman had acted unconstitutionally.
obama, congress, constitution, harry truman, teddy roosevelt
Friday, 30 September 2016 11:03 AM
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