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Problems with "Presidents Day" by Tom Eddlem at LewRockwell.com; but let’s not just "restore Congress," but amend Constitution to limit the federal government

February 15th, 2010 No comments

I encourage readers to take a look at the excellent essay by Thomas R. Eddlem, Down With the Presidency! A President’s Day Message, now up at LewRockwell.com.

I quote first a few key portions, and then note my further thoughts.

But the role of the president under the U.S. Constitution is not to make laws. It is simply to execute the laws passed by Congress. Article I, Section 1 of the U.S. Constitution begins: “All legislative powers herein granted shall be vested in a Congress of the United States.” Since the Constitution mandates that “all” law-making powers reside in the Congress, none are left for the president. The president’s job is that “he shall take care that the laws be faithfully executed” under Article II, Section 3 of the U.S. Constitution. Constitutionally speaking, the president was designed by the founders to be nothing more than the errand-boy of Congress.

Obama won’t be the first to take us from the “rule of law” to “rule by one man.” The Bush and Clinton administrations paved the way for unconstitutional executive orders. Clinton advisor Paul Begala told the New York Times of Clinton’s executive orders: “Stroke of the pen. Law of the Land. Kinda cool.”

President Bush and his neo-conservative theoreticians were even worse, as they posited the idea that the president was above all law. Former Bush Assistant Attorney General John Yoo’s recent book Crisis and Command contends presidential powers are unlimited by any law: “The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly constituted law.”

This is the authoritarian personality long championed by both much of the Democratic leadership on the “left” and all of the neo-conservative Republicans on the “right.” Neo-conservatives like John Yoo explicitly endorse the idea of an omnipotent presidency that erases all the rights of the people. In his wordy and overpriced book, Crisis and Command, John Yoo claims the Constitution created a president with unlimited powers. The Constitution of the founders, Yoo wrote, “did not carefully limit the executive power, as [it] did with the legislative, because they understood that they could not see the future.”  …

This is what the modern presidency has become, a new Caesar whose powers are without limit.

Unfortunately the national leadership of the Republican Party has bought wholly into Yoo’s argument that government gives out rights instead of God, and that government ought not to “give” rights to people we don’t like. … 

It’s true that the average American Fox-servative remains ignorant of these facts, because we won’t hear the details of tortured innocents like Maher Arar, Khalid el-Masri, Omar Deghayes or the Tipton Three on the Fox News Channel. Nor will the Fox News Network tell its audience that the Obama administration has openly ratified all of these Bush-era attacks on the Bill of Rights except for the torture. Fox-servatives love the dictatorial state; they just wish it were run by the party of Pompey instead of the party of Caesar.

 

All of the really bad ideas that the federal government initiated throughout our nation’s history originated with the office of president: This includes most of the wars as well as warrantless surveillance, detention without trial, torture and all of the socialist legislation since the New Deal. Each was only adopted by the president pushing Congress, or more recently, by a president ignoring Congress altogether.

The presidency itself needs to be knocked down from its perch. The only thing that will save the American republic is a renewed focus upon the Congress and cutting down the presidency to size. The founding fathers designed the legislature – Congress – to be the dominant branch of a very small federal government.

My additional thoughts? I copy them from an email that I sent to Tom Eddlem (links added and typos fixed, nacherly):

Tom, great, perceptive piece at LewRockwell.
 
However, you missed that officially it’s still “Washington’s Birthday”, a focus that would help further illustrate how the Unitary President/CIC role has run out of control. Washington – who could have had much more power and refused – would certainly shudder at the “liberties taken” by later presidents (double entendre intended).
 
Also, why no mention of the obvious need to breathe more life into our federal system? One way to limit the power of the President (and Congress & Supreme Court) is to restore it to the states.

Those now pushing for a Constitutional Convention – from Larry Lessig seeking to limit corporate influence on elections and on legislation, to those who want to ensure that only people (not corporations) have Constitutional rights [and fix the glaring legislative error by the Supreme Court in granting Constitutional “free speech” rights to corporation (which are THINGS, not people)], and to those seeking to limit Commerce Clause and restore the 9th and 10th Amendments – could use more cheerleaders!

Not criticism, but food for thought.

Ron Paul introduces Bruce Fein’s bill to check Constitutional abuses by President

October 31st, 2007 No comments

[This is a re-post, as the first was difficult to read due to formatting problems.] 


American Freedom Agenda Act of 2007 (Introduced in House),


http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.3835:



110th CONGRESS, 1st Session


H. R. 3835
To restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers.



IN THE HOUSE OF REPRESENTATIVES


October 15, 2007
Mr. PAUL introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Armed Services, Foreign Affairs, and Select Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned



——————————————————————————–



A BILL
To restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers.



Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


SECTION 1. SHORT TITLE.


This Act may be cited as the `American Freedom Agenda Act of 2007′.


SEC. 2. FINDINGS AND PURPOSE.


(a) Findings- Congress makes the following findings:


(1) Unchecked power by any branch leads to oppressive transgressions on individual freedoms and ill-considered government policies.


(2) The Founding Fathers enshrined checks and balances in the Constitution to protect against government abuses to derail ill-conceived domestic or foreign endeavors.


(3) Checks and balances make the Nation safer by preventing abuses that would be exploited by Al Qaeda to boost terrorist recruitment, would deter foreign governments from cooperating in defeating international terrorism, and would make the American people reluctant to support aggressive counter-terrorism measures.


(4) Checks and balances have withered since 9/11 and an alarming concentration of power has been accumulated in the presidency based on hyper-inflated fears of international terrorism and a desire permanently to alter the equilibrium of power between the three branches of government.


(5) The unprecedented constitutional powers claimed by the President since 9/11 subtracted national security and have been asserted for non-national security purposes.


(6) Experience demonstrates that global terrorism can be thwarted, deterred, and punished through muscular application of law enforcement measures and prosecutions in Federal civilian courts in lieu of military commissions or military law.


(7) Congressional oversight of the executive branch is necessary to prevent secret government, which undermines self-government and invites lawlessness and maladministration.


(8) The post-9/11 challenges to checks and balances are unique in the Nation’s history because the war on global terrorism has no discernable end.


(b) Purpose- The American Freedom Agenda Act of 2007 is intended to restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers.


SEC. 3. MILITARY COMMISSIONS; ENEMY COMBATANTS; HABEAS CORPUS.


(a) The Military Commissions Act of 2006 is hereby repealed.


(b) The President is authorized to establish military commissions for the trial of war crimes only in places of active hostilities against the United States where an immediate trial is necessary to preserve fresh evidence or to prevent local anarchy.


(c) The President is prohibited from detaining any individual indefinitely as an unlawful enemy combatant absent proof by substantial evidence that the individual has directly engaged in active hostilities against the United States, provided that no United States citizen shall be detained as an unlawful enemy combatant.


(d) Any individual detained as an enemy combatant by the United States shall be entitled to petition for a writ of habeas corpus under section 2241 of title 28, United States Code.


SEC. 4. TORTURE OR COERCED CONFESSIONS.


No civilian or military tribunal of the United States shall admit as evidence statements extracted from the defendant by torture or coercion.


SEC. 5. INTELLIGENCE GATHERING.


No Federal agency shall gather foreign intelligence in contravention of the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.). The President’s constitutional power to gather foreign intelligence is subordinated to this provision.


SEC. 6. PRESIDENTIAL SIGNING STATEMENTS.


The House of Representatives and Senate collectively shall enjoy standing to file a declaratory judgment action in an appropriate Federal district court to challenge the constitutionality of a presidential signing statement that declares the President’s intent to disregard provisions of a bill he has signed into law because he believes they are unconstitutional.


SEC. 7. KIDNAPPING, DETENTIONS, AND TORTURE ABROAD.


No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President’s belief that the subject of the kidnapping, imprisonment, or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process. A knowing violation of this section shall be punished as a felony punishable by a fine or imprisonment of up to 2 years.


SEC. 8. JOURNALIST EXCEPTION TO ESPIONAGE ACT.


Nothing in the Espionage Act of 1917 shall prohibit a journalist from publishing information received from the executive branch or Congress unless the publication would cause direct, immediate, and irreparable harm to the national security of the United States.


SEC. 9. USE OF SECRET EVIDENCE TO MAKE FOREIGN TERRORIST DESIGNATIONS.


Notwithstanding any other law, secret evidence shall not be used by the President or any other member of the executive branch to designate an individual or organization with a United States presence as a foreign terrorist or foreign terrorist organization for purposes of the criminal law or otherwise imposing criminal or civil sanctions.


This closely matches the legislative package suggested by conservatives Bruce Fein, David Keene, Richard Viguerie, and Bob Barr, who on March 20, 2007 announced the formation of the American Freedom Agenda (AFA), a campaign to “restore governmental checks and balances and civil liberties protections under assault by the Bush administration”.  According to the AFA:


<i>”Especially since 9/11, the executive branch has chronically usurped legislative or judicial power, and has repeatedly claimed that the President is the law. The constitutional grievances against the White House are chilling, reminiscent of the kingly abuses that provoked the Declaration of Independence.

“The 10-point American Freedom Agenda would work to restore the roles of Congress and the federal judiciary to prevent such abuses of power and protect against injustices that are the signature of civilized nations.  In particular, the American Freedom Agenda would:



  • Prohibit military commissions whose verdicts are suspect except in places of active hostilities where a battlefield tribunal is necessary to obtain fresh testimony or to prevent anarchy;
  • Prohibit the use of secret evidence or evidence obtained by torture or coercion in military or civilian tribunals;
  • Prohibit the detention of American citizens as unlawful enemy combatants without proof of criminal activity on the President’s say-so;
  • Restore habeas corpus for alleged alien enemy combatants, i.e., non-citizens who have allegedly participated in active hostilities against the United States, to protect the innocent;
  • Prohibit the National Security Agency from intercepting phone conversations or emails or breaking and entering homes on the President’s say-so in violation of federal law;
  • Empower the House of Representatives and the Senate collectively to challenge in the Supreme Court the constitutionality of signing statements that declare the intent of the President to disregard duly enacted provisions of bills he has signed into law because he maintains they are unconstitutional;
  • Prohibit the executive from invoking the state secrets privilege to deny justice to victims of constitutional violations perpetrated by government officers or agents; and, establish legislative-executive committees in the House and Senate to adjudicate the withholding of information from Congress based on executive privilege that obstructs oversight and government in the sunshine;
  • Prohibit the President from kidnapping, detaining, and torturing persons abroad in collaboration with foreign governments;
  • Amend the Espionage Act to permit journalists to report on classified national security matters without fear of prosecution; and;
  • Prohibit the listing of individuals or organizations with a presence in the United States as global terrorists or global terrorist organizations based on secret evidence.”

http://www.americanfreedomagenda.org/


Liberals are also starting to support this agenda.  In July a group of well-known liberals launched the American Freedom Campaign, with purposes very similar to those of the American Freedom Agenda. http://www.americanfreedomcampaign.org/


More here: http://www.huffingtonpost.com/naomi-wolf/finally-action-ron-pau_b_69042.html