Charles Cooke notes that some on the right appear to be eagerly anticipating the time when a Republican President can invoke the “Obama rule” and just start doing whatever he or she pleases – and he doesn’t like it:
…I am afraid that I consider this approach to be little short of suicidal, and I can under no circumstances look forward to a system in which the executive may pick and choose which laws he is prepared to enforce. On the contrary: I consider the idea to be a grave and a disastrous one, and I would propose that any such change is likely to usher in chaos at first and then to incite a slow, tragic descent into the monarchy and caprice that our ancestors spent so long trying to escape. During the last 500 years or so, the primary question that has faced the Anglo-American polities has been whether the executive or the legislature is to be the key proprietor of domestic power. In one form or another, this query informed both the English Civil War and the Glorious Revolution that followed it, and it was at the root of the Revolution in America. Cast your eyes across the Declaration of Independence and you will notice that the majority of the “long train of abuses and usurpations” have to do with the violation of the rights of assemblies by individuals who believe themselves to be the dominant arbiter of the state’s affairs…
I don’t like it, either; but the question is, can the cat be put back in the bag? That is where we get into very doubtful territory. Earlier in his article, Cooke notes the impossibility of actually explaining what is at stake to the average audience – which either won’t know the issues (thanks, public schools!) or won’t have the patience to deal with it. We are a very long way from any sort of America which fully understands what is at stake. This puts anyone who wishes to have a constitutional republic at a disadvantage as it is useless to discuss the finer points of what is actually a human right against someone who is promising the sun and the moon in a political campaign.
No system will ever work better than the people who run it. And the trouble with all human systems is that they are run by human beings – human beings who are prey to cowardice, greed, pride, flattery and all that. The historian Will Durant, in discussing the Principate established by the first Roman Emperor, noted that in legal terms the powers the Emperor had were no greater than those of an energetic American President – how, then, did the Principate so swiftly degenerate from the high tone of Augustus to the madness of Caligula and Nero? Because the people who ran the system allowed it to happen – it was easier to just let the Emperor rule; to take the bribe, the obtain the sinecure position, to let things slide. Fighting for principal only forced you to work and exposed you to attack. Better to go along to get along. One would have hoped in 2009 that Congressional Democrats would have been keen to preserve their own power vis a vis the White House, regardless of who is in office. But, nothing doing – once Obama was sworn in, Congress became the merest rubber stamp…and once the GOP gained the House in 2010, nothing happened in Congress because Reid, the alleged leader of the Senate, decided that it was just easier to let Obama do whatever he pleased. This it the nature of things in human affairs – and no system we have or can create will really change it.
Our now-tattered and broken system had a good run. From 1787 until 1950 it pretty much worked as planned, aside from a few abuses. It worked because everyone kept it working – the President didn’t abuse and Congress was vigilant in protecting it’s power. Since 1950, though, it as rather fallen apart (the signal for this, by the way, was Truman’s commitment to war in Korea without obtaining prior Congressional authorization: going to war in Korea was correct American policy – but Truman should have got a declaration of war from Congress, first). We have just drifted along with the tide of events – and Congress passed its legislative powers away: first to the Courts, later to the bureaucracy and now to the merest whim of the President. The one defense the Founders gave us against Executive abuse – impeachment – is a dead letter. It never really worked (if it had, a good dozen Presidents would have been removed from office over the years), and it was killed off when Clinton was acquitted by the Senate even though he clearly had broken the law and should have been removed from office. Unless by some political miracle you can get 67 Senators in opposition to a President, impeachment will never happen – and I can’t see either major party ever getting to 67 Senators while the other party is in the White House. Freed from any fear of impeachment, a President can do as he pleases while in office – there’s really no way to stop him (some people hold that the power of the purse can still be invoked: I ask, how? Suppose the President draws money out of the Treasury which hasn’t been appropriated; what is the only sanction you can hit him with? The aforementioned dead letter of impeachment…).
I don’t know how we get back to a place where the President holds himself in check and/or the Congress vigorously protects it’s own power. It could be that we’ll need to go through a period of executive tyranny (you know, dictatorship) which leads to revolution and the re-establishment of constitutional law. I hope it doesn’t come to that. And as a means of trying to prevent that, I do have some suggestions:
1. Don’t be afraid to rake over the past a bit. When a new Administration comes into office, one of its first orders of business should be the investigation of the previous Administration. This is especially true when it is a change of political party as well as a new Administration. Sure, this means that Bush Administration officials would have been raked over the coals by Obama people – but it also might mean that Obama people get the same raking over by President Walker’s troops. The thought that in just a few years the other guys might be in power and thus looking to send you to jail would produce a great deal of fear about abusing power and breaking the law.
2. Term limits. Part of the problem with Congress is that they can stick around too long…you’ve got a nice office, a large staff, things are going pretty well: why rock the boat? Might cause you to lose office. Better to just go along to get along. Term limits brings that to an end – if you can’t re-seek your current office next year, then might as well do your job (true, some people will just coast along to the end of their term…but others will be ambitious for different office, and what better way to make a name than to shake things up?).
3. Make all government officials – elected and appointed – directly responsible for their actions. No more government pays when official so-and-so screws up: nope, the official pays. In criminal and civil penalties. No more immunity for government officials: and no more anonymity, either…their names, salaries, positions and performance reviews are on line for everyone to see. Having the people kinda looking over their shoulders might make them less willing to do wrong.
That is just a few things; other people can come up with other ideas. But do keep in mind that there are two ways to make a government behave: have honorable men and women as a majority of the government, or put the most intense fear of retribution into the minds of government officials. We can’t ever be sure that anyone is actually honorable (even the best of us can go wrong), so we should concentrate on putting the fear on them – the thought that you are to be hanged in a fortnight does concentrate the mind wonderfully…and if a government official is worried every day that he might be called to account for his actions, he’ll either do as little as possible or be as honest as possible…in either case, we’re ahead of the game.