Friday, February 22, 2019

The Fire and the Wall

When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.  (I Corinthians 13:11, KJV)

CALL AND RESPONSE was a regular feature of the campaign.  

     "We are going to build a wall.  And who is going to pay for it?"


     Another call, which sought appropriations for the wall, was the cause of the longest shutdown in American history.  And Steve Schmidt, a former Republican, had the appropriate response.

     "Where are the pesos?"

     Timing is everything.  On Friday, someone decided to mock the oath to "preserve, protect and defend the Constitution of the United States"--again.  And then, Monday was Washington's Birthday.*  The long weekend was a perfect setting for a study in contrasts--honesty v. chutzpah.

     All the powers of the Presidency are to be used for the benefit of the Republic, not a fragile ego.  Thus, what the gentleman from New York has done is not a precedent, it is a postcedent--an example of what a true Chief Executive would not do.

     History cast a spotlight on emergency.  We know its shape and shadow--and will not be fooled.  For John Locke had great influence on the Framers regarding the structure and the conduct of government, even in unusual circumstances.

       …(I)n emergency, Locke argued, responsible rulers could resort to 
       exceptional power.  Legislatures were too large, unwieldy and slow 
       to cope with crisis; moreover, they were not able "to foresee, and so 
       by laws to provide for, all accidents and necessities."  Indeed, on 
       occasion "a strict and rigid observation of the laws may do harm."  
       This meant that there could be times when "the laws themselves 
       should...give way to the executive power, or rather to this funda-
       mental law of nature and government, viz., that, as much as may be, 
       all members of society are to be preserved."  (The Imperial Presidency  
       by Arthur Schlesinger, Jr. 8)

     Treason is the only crime defined in the Constitution because it is a threat to the life of the Republic; and when the South began "levying war" against the United States, the President gave the words of the Preamble--"in order to form a more perfect Union"--a chance to come to pass.

       For Lincoln delayed the convocation of Congress from April 12, 1861, 
       when Fort Sumter was fired upon, until July 4 lest rigid constitutionalists 
       on the Hill try to stop him from doing what he deemed necessary to save 
       the life of the nation.  In his twelve weeks of executive grace, Lincoln 
       ignored one law and constitutional provision after another.  He assembled 
       the militia, enlarged the Army and the Navy beyond their authorized strength,
       called out volunteers for three years' service, spent public money without 
       congressional appropriation, suspended habeas corpus, arrested people 
       "represented" as involved in "disloyal" practices and instituted a naval 
       blockade of the Confederacy--measures which, he later told Congress, 
       "whether strictly legal or not, were ventured upon under what appeared 
       to be a popular demand and a public necessity; trusting then as now that 
       Congress would readily ratify them."  (Schlesinger, 58; emphasis his)

     The President was not inclined toward whimsy.

     "Lincoln's resort to the law of necessity was provoked by the most authentic and appalling of emergencies, one so recognized by Congress and the people...."  (Schlesinger, 60)

     A century later, the country faced an external threat, which raised a question:  "Was a congressional role possible in the missile crisis?"  (Schlesinger, 175)  After reviewing events, the answer was clear.

       But, even in retrospect, the missile crisis seems an emergency so acute 
       in its nature and so peculiar in its structure that it did in fact require 
       unilateral executive decision.
         Yet this very acuteness and peculiarity disabled Kennedy's action in 
       October 1962 as a precedent for future Presidents in situations less acute 
       and less peculiar....  Where the threat was less grave, the need for secrecy 
       less urgent, the time for debate less restricted--i.e., in all other cases--the 
       argument for independent and unilateral presidential action was notably 
       less compelling.  (Schlesinger, 176)

     Lincoln and Kennedy met the standard and passed Locke's test.  "...(F)or prerogative is nothing but the power of doing public good without a rule."  (Second Treatise of Government, Chapter 14, 166)

     "I could do the wall over a longer period of time," said the gentleman from New York.  "I didn't need to do this, but I'd rather do it much faster."

     "A longer period of time" would be the appropriations process.  And with neither a Civil War nor a Cuban missile crisis, there is no emergency.  For when the heads of the Intelligence Community appeared before the Senate, the southern border was not on their minds.  Thus, pretext is an excuse.

     "I didn't need to do this, but I'd rather do it much faster."

     Despite what he would like, time is not of the essence.  And under the circumstances, a constitutional provision cannot be negated:  "The exclusive privilege of originating money bills will belong to the House of Representatives."  (Alexander Hamilton, The Federalist Papers, No. 66)  Disappointment over what was passed does not authorize circumvention.

     Finally, the courts will not provide a quantum of solace.  In Youngstown v. Sawyer, the Supreme Court said President Truman could not seize the steel mills during the Korean War.  So how likely is any court to support a temper tantrum?

     There is no Reichstag fire, and the Weimar Constitution does not apply.  Article 48--rule by decree--is tattered and in the wind, as is the Enabling Act of 1933.

     Self-styled "conservatives" love to call themselves "strict constructionists."  But where are their strenuous objections to the gentleman from New York?  Of course, there are none because they are strictly deconstructionists of the Constitution.

    For those who take seriously the oath to uphold the supreme law of the land, a joint resolution of disapproval can terminate the abuse of power pursuant to the National Emergencies Act of 1976.  A veto proof majority in the House and the Senate will make it so.

     The gentleman from New York has been in violation of the Constitution from the moment he said "So help me God," starting with the emoluments clause.  And because he was in violation of that conflict of interest provision in the supreme law of the land, he failed to "take care that the laws be faithfully executed."  And because of those failures, he is in violation of the oath that requires him to "preserve, protect and defend the Constitution"--which is the first law he has to faithfully execute.  Thus, he is in contempt of the Constitution.  ALL OF THOSE ARE IMPEACHABLE OFFENSES, four charges--without considering the Russian Connection.

(c)2019 Marvin D. Jones.  All rights reserved.

*As observed by law.  But today is the date determined by his mother.

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