Thursday, December 29, 2005

On executive power

Okay, so within the controversy over Bush's domestic spying program is the question of exactly how far executive power goes. Bush's supporters say that his authority to eavesdrop falls within his powers as Commander in Chief as established in the Constitution. My personal opinion is that, since the tenth amendment says that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people, the power to disregard laws and the Constitution itself is certainly not inherent to the president; in fact, he takes an oath to protect and uphold the Constitution.

Another concern is the fact that Bush defends his actions by saying that sacrificing some civil liberties is necessary in times of war. Technically, however, we're not in a time of war. Article I of the Constitution says that only Congress can declare war; that's one of the essential checks and balances put in place to prevent the Executive from assuming undue power. Bush is, in essence, granting himself unchecked authority in times of war, and unchecked authority to say when those times are.

Once upon a time, another president took upon himself powers not granted him by the Constitution. In 1803, Thomas Jefferson, a staunch advocate of states' rights over federalism, had the opportunity to double the size of the country for a mere three cents per acre. The offer would expire shortly, and a treaty between Spain and France jeopardized the entire deal, but Jefferson felt that he didn't have the express Constitutional authority to execute such a transaction. Caught between waiting for Congress to approve a constitutional amendment allowing the transaction and watching the deal fall through, Jefferson borrowed $15 million from Great Britain at 6 percent interest and bought the land, which most Americans now recognize was a good thing.

But Jefferson wasn't about to fall back on "I did it for the good of the country" as an excuse. He wrote the following in a letter to John C. Breckenridge:
This treaty must of course be laid before both Houses, because both have important functions to exercise respecting it. They, I presume, will see their duty to their country in ratifying & paying for it, so as to secure a good which would otherwise probably be never again in their power. But I suppose they must then appeal to the nation for an additional article to the Constitution, approving & confirming an act which the nation had not previously authorized. The constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify & pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it. It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; & saying to him when of age, I did this for your good; I pretend to no right to bind you: you may disavow me, and I must get out of the scrape as I can: I thought it my duty to risk myself for you. But we shall not be disavowed by the nation, and their act of indemnity will confirm & not weaken the Constitution, by more strongly marking out its lines.

In the end, the treaty was ratified, and Jefferson wasn't disavowed. But it's obvious that he took that possibility into consideration when he made the deal. He recognized that, although he acted in what he felt were the best interests of the country, he was doing so outside the powers granted him by the Constitution. If the country disagreed with those actions, he would accept whatever consequences came of them. He didn't try to claim special executive privilege or say that he should be free to act as he saw fit for the benefit of the nation. He owned up to what he did and was willing to accept the consequences.

We are all free to break the law. When we come to a stop sign, the law says to come to a full stop, but we still have the choice to stop or to roll on through. If we choose to roll on through, though, we're also choosing to accept the consequences of violating the law. Sometimes, we can explain our actions to the satisfaction of the authorities; the man whose wife is in labor in the back seat might be able to get off with a warning. But that doesn't mean he didn't break the law. It just means that when he gave his reason for doing it, the authorities decided to let it slide.

President Bush needs to own up to his actions. Instead of saying that the office of the President should make him immune to the law, should give him the power to act as he wishes in the best interest of the country, he should say that yes, he violated the law and the Constitution, he had a reason for it, and he now throws himself on the mercy of the nation. It's then the nation's job to decide whether or not he had good cause to do what he did.

As president of a Constitution-based federal republic, Bush doesn't have the supreme authority of a king or dictator - he's a citizen, a person just like the rest of us, who has been elected to a position of leadership by the people. Nothing about his office gives him any more power than the rest of us have to break the law. Whatever he does, for whatever reason, he must answer to the ultimate sovereign authority in this country. the people.

No comments: