Tuesday, March 20, 2012


"These kinds of orders are not evidence of a new form of tyranny. Maybe an old one, though."

Imperial Presidency
I had this big long post planned on constitution, executive orders, emergency powers, and the recent executive order by President Obama (Natural Resources Defense Preparedness). Then I read a few lines by Glenn Reynolds that sort of said it all and gave up.

The NRDP executive order was dumped on Friday when the White House tends to pile documents on media organizations in an attempt to bury them by volume when the staff is lighter. It outlines what the administration and the structure of leadership of the federal government should be when the nation faces emergency or challenges.

Some have called it a sinister power grab, a chilling document that shows how the Obama administration plans on turning America into a communist dictatorship or what have you. That's just nonsense. Its the same kind of nonsense as when the left cried "The Bush administration planned taking over Iraq before 9/11!!!!" That's what smart governments do, they plan for emergencies before they happen. The Bush administration probably had plans to invade Canada and Switzerland too. You do that in advance because you never know what will come in the future, and its better to be prepared and not need something than the opposite.

This executive order is just one more example of that kind of preparedness. And its not new, its merely a restatement and extension to an executive order from 1994 which has been updated several times before.

But, as Glenn Reynolds suggests, that doesn't mean there's no problems with this order:
That reminds me of what I wrote back during the Bush Administration: “Some of the backlash against things that the Bush Administration has been doing probably stems from a lack of understanding of just how bad the law has always been in many areas, leading to a false impression that things represent shocking new departures from the Constitution when they really represent . . . er, . . well-settled departures from the Constitution. Search, seizure, and privacy law, of course, was already seriously damaged by the Drug War long before Bush ever took office, something that tends to be forgotten in discussions of FISA* or the Patriot Act. But it goes beyond that sort of thing. Sweeping Executive authority, for example, is nothing new.”
As he notes, the PATRIOT Act may have had problems but they weren't new problems. The PATRIOT Act is essentially just a rewrite of the RICO statutes, which are decades old and have been used to bust mobsters all across America. And the RICO is written is highly suspect in terms of constitutional protections.

Essentially, RICO allows the police to arrest, try, and convict people for being associated with bad guys. They don't have to catch Vito Corleone doing anything wrong himself, all he has to be busted for is telling others to do something or sometimes even just being associated with them. And there are some 4th and 5th amendment problems with that, which mob lawyers continually bring up but are ignored because, well, it helps us get really bad guys.

Nobody disputes that mobsters and terrorists are genuinely bad guys. And nobody disputes that we need to stop them. And these tools allow law enforcement to go after them efficiently and powerfully. And its worked; there have been dozens of terrorist attacks and plots foiled by the FBI and local law enforcement, some of them using the tools given them by the PATRIOT Act. And scores of bad guy mobsters have been taken down by using RICO.

There was a bit written by Steven Hayward last month at Powerline which touches on this, and I want to note briefly. In it, he argues that the executive branch must be allowed to respond to emergencies and the changing world situation in ways that might be problematic or even illegal at times.

For example, FDR supported Britain, sent them military supplies and even troops when congress said he must not and denied funding. That was the right thing to do at the right time; failure to aid would have lost Britain and cost us a foothold to attack Hitler with. But it was also technically unconstitutional.

For another example, Lincoln suspended Habeus Corpus and simply did whatever he thought was necessary regardless of the text of the constitution in order to save the Union and preserve a United States. It was the right thing to do, even though there are many in the South who scream bloody murder at that suggestion to this day.

As our founding fathers said and warned repeatedly: the constitution is for normal peace time life, during war and in emergencies, some or all of it might go out the window; they hoped temporarily. And sometimes you have to do that kind of thing in order to do the job of president.

The thing is you want to use that power only when absolutely necessary, only when it is going to result in a nation closer to the ideals of the constitution, only reluctantly, and only for incredibly important, critical times. Hence, I disagree with Mr Hayward that Iran-Contra was one of those times - it was good to stop the communists in Central America, but bad to do it in that manner.

I'm not 100% wedded to this principle, its just something to consider when thinking about executive power.

*Incidentally the FISA wiretapping was to listen in on known terrorists or terrorist suspects, not American citizens, outside the US, and I have no problem with that whatsoever.

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