The Gross National Debt

Wednesday, February 13, 2013

End run around Congress an old, old idea

.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
This may get complicated, but I explain it at the end. This is also, to my thinking anyway, pretty important.

If we are to accept the historical record as fact and legal precedent-creating, then the President of the United States does have the right and authority to order drone strikes on American citizens, even on American soil, without formal charges, a trial and a conviction of that citizen.

Dunno about you, but the idea makes me want to start scanning the skies with a long range rifle.

Point of order Mr. Chairman! Those who objected in the past were blown away.

Point conceded. Let the record also reflect those who objected and were blown away died free men.

The point is: Are executive orders legal? Depending on whom you ask, the answer is yes and the answer is no.

However, such orders are nearly as old as the nation.

Before I explain, I have another point to raise. Many people, your scribe included, have raised various kinds hell over the current president's "executive orders" which end run around Congress. Few expressed the same outrage when the exact same maneuver was used by a president of the opposing party. For the record, I object when either party's president does it. And yet, f'dangit, I find instances where I support at least parts of some orders.
I hate it when I have to disagree with myself.

I went back to 1832 and found executive orders which flew in the face of another branch of government.  In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Supreme Court held that Native Americans were a distinct community with the right to some self rule. President Andrew Jackson pretty much ignored the ruling. Some people believe he said "(Chief Justice) John Marshall has made his decision; now let him enforce it!" Regardless of the veracity of that quote, President Jackson certainly never intended to enforce the SCOTUS decision as he stated in letters he wrote.

Jump forward a few more years to what is the most famous executive order of all time, an order which clearly states the military has the right to fire upon and kill American citizens on American soil without charges being filed, without a trial being held and without a conviction and sentence in place.
An executive order

Despite how scary the above fact is, you're going to have to look long, hard, far and wide to find someone who disagrees with the impetus of that executive order. You can find people who disagree, but they are seriously marginal people and hold a variety of other views which make them best suited to be the first involuntary colonists on Mars.

The Emancipation Proclamation did all that. It did an end run around Congress - which I abhor. It authorized the military to kill American citizens - an item which I cannot accept. It freed slaves - which I unreservedly support - but only in the Southern States. It declared war without Congressional approval - also a matter which has taken place since then many times over. It also overrode several Constitutional rights.

End run: "That the Executive will, on the first day of January aforesaid, by proclamation..."

OK to kill Americans: "... the Executive Government of the United States, including the military and naval authority thereof..."

Freed slaves: "And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free..."

War: "...and as a fit and necessary war measure for suppressing said rebellion..."

Constitutional rights: Here I'm gonna offend people. So be it. At the time (AT. THE. TIME.) slaves were considered property under the Constitution. The Emancipation Proclamation therefore resulted in an illegal search and seizure of personal property. "Amendment IV - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Union soldiers routinely camped out in Southern homes. "Amendment III - No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

Lincoln appointed himself Congress, policeman, prosecutor, judge, jury and hangman by taking upon himself the ability to create, enforce, try, adjudicate and carry out a law, to wit making slavery illegal. "Amendment V - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Lincoln also overrode the Constitutional provision of how the Constitution may be amended. The Proclamation flew in the face of the Constitution's provisions on slavery.

AT. THE. TIME. the Constitutional read "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.)"

The 14th Amendment outlawing slavery was not passed until 1868, after the Emancipation Proclamation.

There are other instances within the Emancipation Proclamation which make it a violation of the Constitution, but you get the idea.

The procedure for amending the Constitution is laid out in the Constitution. This was followed for the 14th Amendment.

Executive Orders don't have to be illegal. But ones which usurp the rights of Americans certainly are. In the face of those, we have but one recourse.

No comments:

Post a Comment