Executive Orders, Subject to the People
by JBS President Emeritus John F. McManus
In a nation where people enjoy freedom, laws are made by a parliament, a congress, or some similar assemblage of elected officials. These lawmakers owe their posts to voters and are, in the main, subject to the people. But, as history has repeatedly shown, the laws in many nations are made by the decrees of a king or dictator who relies on virtually almighty power to rule.America’s Founders knew well the excesses of that kind of power. So they declared themselves independent, fought a war to get out from under a king’s dictates, and won the struggle to be free. The very first clause in the 1787 Constitution they created left all law-making power in the hands of Congress. Under the rules established by the U.S. Constitution, the president is charged with the responsibility, not to make law, but to see that all laws properly enacted would be faithfully executed.
In the performance of his duties, a president can issue executive orders that have the force of law – but only among those who serve under him. A presidential executive order is proper when directed at government employees. While he serves, a president is much like the CEO of a company who certainly has a right to issue orders binding his employees.
In 1793, during his first term in office, George Washington issued an executive order declaring America’s neutrality in the war between France and England. Our first president soon realized that the protests of Madison and Jefferson against his executive mandate were correct. He then asked Congress to issue a law declaring the sought-after neutrality and Congress complied. There were no more presidential misuses of the executive order power for approximately 70 years.
In 1863, President Abraham Lincoln overstepped his authority and issued executive orders that suspended habeas corpus, blockaded southern ports, and emancipated southern slaves. He cited his role as “commander in chief” of the military to do so. Later, following the pattern set by Washington, he asked Congress to amend the Constitution to prohibit all slavery. Which was done. A measure of respect for the limitations on presidential power still existed during that period of history. Then in 1866, the Supreme Court in Ex Parte Milligan explained those limitations as follows:
The power to make necessary laws is in Congress; the power to execute in the President…. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.
Fast forward to today. In its first seven years, the Obama administration issued 560 major regulations via executive orders. Each had significant economic or social consequences for the entire nation. His wrongful reliance on the power to issue improper executive orders followed President George W. Bush’s issuance of half the number created by President Obama. As reported by Binyamin Applebaum and Michael D. Shear in the August 28, 2016 issue of the New York Times, the Obama orders aimed, among other targets, to “restructure the nation’s health care and financial industries, limit pollution, bolster workplace protections, and extend equal rights to minorities.” The Times reporters added that Obama’s reliance on executive orders “has imposed billions of dollars in new costs on businesses and consumers.”
Barack Obama has even stated his intention to use “my pen” if Congress doesn’t enact laws he wants. Too often, Congress has caved in and tolerated such completely illicit contempt for the Constitution. This docility of the legislative branch has to stop. No king or all-powerful ruler should be making laws for our nation.
Congress should declare any executive order aimed at the entire population completely null. All presidents should follow the lesson George Washington learned while he served as President. All Americans should become familiar with Article I, Section 1, Clause 1 of the U.S. Constitution where Congress is named as the sole possessor of “All legislative powers.”
Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.
Does Obama Skirt the Constitution? Ask This Yale Professor
by JBS President John F. McManus
Americans across the country are finally awakening to the fact that the federal government does indeed operate outside of its limitations. A case in point is Bruce Ackerman, professor of law and political science at Yale University. Because of President Obama starting a war with ISIS, he finally understands that the President has violated the U.S. Constitution.
The Yale professor rightly complains that the President’s decision to make war against ISIS amounts to a unilateral assumption of power. OK, but the professor then says that the President’s unilateral action “marks a decisive break in the American constitutional tradition,” adding that “nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.” Does this mean that Ackerman would go along with Mr. Obama’s decision if he had consulted with and received approval – not a declaration of war – from Congress for military action against the Islamist militants?
Curiously, the Obama team claimed that decision to go to war against ISIS was acceptable because Congress had authorized the use of military force against Al Qaeda after the 9/11 attack, and new approval for such action wasn’t needed. In other words, a past congressional stamp of approval for war that was not a formal declaration of war as required by the Constitution can serve as a legitimate go-ahead for whatever action is desired even a decade later. And the new target of the military doesn’t even have to be the one named in the previous congressional authorization. If that’s the case, then any real or supposed enemy can be targeted by simply citing this past congressional action.
Let us point out to the professor that the Constitution states in Article I, Section 8, Clause 11 that Congress has the power to “declare war.” Nowhere else in the document is such authority granted to any other portion of the government. Partisans who want the President to have such power point to the Constitution’s naming the occupier of the White House as “commander in chief of the Army and Navy.” This designation should never be considered the equal of the explicit grant of power solely to Congress to declare war. In other words, the nation’s military arm is not the President’s possession to use as he desires. The sole grant of war-making power to Congress completely outweighs the mere designation of who shall be the commander of forces once a war starts. One would think that a law professor would know this.
The last congressional use of its constitutional authority to declare war occurred immediately after the Japanese attack at Pearl Harbor in 1941. Formal declarations of war were approved by Congress against Japan, Germany, and Italy. And the U.S. won against each of those struggles. No declarations of war were approved regarding subsequent wars in Korea, Vietnam, Bosnia, Iraq, Afghanistan, and more. Can the U.S. claim victory in those contests, especially if we are still undergoing military operations in Iraq and Afghanistan?
Numerous Presidents have sent small military detachments to rescue Americans in danger, reply swiftly to some outrage perpetrated against our nation, etc. And few, if any, disapproved of these moves and insisted that formal congressional declarations were needed. But war is something else and, according to the Constitution, if there is to be one, it must be formally declared.
If prominently placed professors of law and political science, who should already understand the Constitution but don’t, are waking up, then we should use this as an opportunity to further engage them and others on obeying the Constitution, returning the federal government to its constitutional limitations, and stop policing the world with authorization supplied by the United Nations or its NATO subsidiary. A return to the Constitution’s easily understood passages regarding war is long overdue.
Use today (Constitution Day) as a good excuse to learn more about the American system of government in Overview of America.
Rubio Adopts Neoconservative Foreign Policy
by JBS President John F. McManus
The George H. W. Bush administration (1989-1993) included foreign policy hawks Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, John Bolton, and others. These men arranged the 1991 “Desert Storm” attack on Iraq, that half-forgotten UN-authorized campaign that lasted only a few weeks. Saddam Hussein’s forces were ousted from Kuwait while Mr. Bush was proclaiming the emergence of a “new world order” and a “reinvigorated United Nations.” No sooner had this operation ended than these same men were laying plans for a second war against Iraq. But Bill Clinton got in the way by besting Bush in the 1992 election. The men who wanted more war had to exit their government posts.
Four years later in 1997, these same individuals helped to form the Project For the New American Century (PNAC). Its stated purposes included 1) increased defense spending to carry out “global responsibilities,” 2) forming alliances to “challenge regimes hostile to our interests,” and 3) recognition of our nation’s “unique role in preserving and extending international order.” Summed up, PNAC called for the U.S. to be the world’s policeman and to become leader of a new American empire in cooperation with the United Nations. No longer in office, however, these world planners and 20 of their colleagues at PNAC actually sent letters to President Clinton and House Speaker Gingrich urging another full-scale attack on Iraq. Clinton didn’t bite and neither did Gingrich.
But when George W. Bush moved into the White House in 2001, he brought many of the PNAC’s war-mongers back into power. Led by Cheney and Rumsfeld now Vice President and Secretary of Defense, the PNAC’s empire builders actually called for another foray into Iraq before the September 11, 2001 terrorist attack. They soon got their wish for further war, not only in Iraq but also in Afghanistan.
Leading neonconservative William Kristol of The Weekly Standard moved in to become the top dog at PNAC and soon abolished it in favor of a new organization, the Foreign Policy Initiative (FPI) which he now leads. FPI simply repeated all of what PNAC had stood for. Which brings us to the newest open champion of neonconservative goals.
During his speech at the March 2014 CPAC convention, Senator Marco Rubio (R-Fla.) warned about threats from the world’s major totalitarian regimes. He pointed to China’s moves to control Pacific sea lanes, North Korea’s potential to detonate a nuclear bomb over California, Iran’s ability to nuke Israel and the U.S. east coast, and Russia’s moves in Ukraine. What to do about these rogue nations and their leaders? Rubio laid it out straight in unambiguous terms. He insisted, “There is only one nation on earth capable of rallying the free people on earth to stand up to totalitarians. The United Nations can’t do this. In fact, they can’t do anything…. Without American engagement, the world I just described to you is not just a possibility; it is a real probability.”
Chalk up one more advocate of neoconservatism’s call for worldwide involvement by the United States, even advocacy of war. Because of his speech, Rubio remarkably improved his stature within the Establishment and the FPI. It remains to be seen whether his stock amongst grassroots Republicans will grow or decline.
Read more about neoconservatives in The New American‘s article, Neocon Control (not affiliated with the Project For the New American Century (PNAC)).