Monday, February 17, 2014

President's Day 2014: A Call To Arms to Make the Presidency More Subject to the Rule of Law

President's Day goes back to our beginnings.  Congress implemented a Holiday for government offices in the District of Columbia to celebrate our first president, George Washington, in 1879.  This was expanded to include all federal offices in 1885.  The Holiday was initially celebrated to mark Washington's actual birthday,  February 22, 1731.   In 1971, however, the federal holiday was shifted to the third Monday in February by the Uniform Monday Holiday Act.

As a result my office was quiet and cold today.  

To celebrate the day, our local NPR affiliate aired an interview with Bruce Ackerman, professor of law and political science at Yale University.  Ackerman is concerned about the state of our Imperial Presidency.  If our founding fathers were clear on one thing, he says, it was that they didn't want the President to have a king's prerogative and they wanted him (now potentially her) to be subject to the rule of law.  

But there has been a growing trend for Presidents to place themselves beyond the rule of law in the sphere of national security and foreign relations.  This trend has accelerated under both parties since the Carter Presidency.  Ackerman is a careful lawyer and so he confined himself to just a few examples he knows well, such as 1) There are statutes that require the President to cut off funding when there is a military coup in a country; this has unquestionably happened in Egypt--Obama has ignored it; 2) The FISA (Foreign Intelligence Surveillance Act of 1978) makes most decisions in secret.  Secret laws and secret executive action cannot be reviewed by the political checks and balances.  They invite abuse.  

Even though Ackerman is an expert in constitutional law, he does not have access to these secret FISA rulings.  For example, some entities have recently been expelled by Al Qaida as affiliates.  Do the Congressional measures that authorize the President to take covert and lethal action against these entities still apply?  Ackerman observes that in studying this question, he is relegated to rumors in the New York Times and the Washington Post.  Administration lawyers "are said to be debating the question" these papers report.  But what are they debating.  This is Kremlinology he observes.  

We need to get more politically active on this issue.  Making the President subject to the rule of law is a big deal.  The Snowden leaks have provided an opportunity to make some headway on this.  The Patriot Act measures enacted in the wake of 9/11 and reauthorized and expanded under Obama will sunset on June 1, 2015.  Almost all the NSA spying that has been revealed will be illegal when that happens.  This means the President will have to bring forth a proposal.  Congress will have an opportunity to reign back some of these Presidential powers to act in secret.  

The expiration of the Patriot Act will also provide an opportunity for Obama to shape his legacy by placing some of these Presidential powers back on a constitutional footing.  Will he?  Not without some help from us.  If we can apply some meaningful pressure to rein some of this in we'll owe a debt to Snowden.  If we can't  .... woe is us if we get an extremist President in future. And shame on us.   So let's get active. 

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