Executive Orders

December 16, 2001

by Bruce Walker

Why, suddenly, have senators like Patrick Leahy discovered principles of American government, like Checks and Balances or Separation of Powers, which lay dormant during the eight long years of Clinton’s reign? The spectacle is both laughable and tragic.

Clinton had eight years of slothful and indulgent peace for which all of America is paying a terrible price now, but Clinton acted much less like a constitutional head of government than like a monarch. He did not just ignore the reasonable requests of Congress to be informed, but he violated statutes and even ignored that most favored and least responsible branch of government, the judiciary.

Now, when the nation is facing a genuine national emergency, Senate Democrats have determined that minute and trivial "investigation" and "deliberation" on matters which are life or death for our nation are required by the Constitution.

How ironic! Republicans during the Vietnam War, the Korean War, and the Second World War strictly adhered to the notion that politics end at the water’s edge. Moreover, Republican Senate Leader Bob Dole added a true spirit of bipartisan support to Clinton when the Fumbler-in-Chief was fumbling around in Serbia, bombing Chinese embassies and creating civilian casualties in Sarajevo.

The evening of Pearl Harbor Day, a Democrat Congressman from Pennsylvania tells Bill O’Reilly that the American government cannot hold indefinitely a foreign national with obvious connections to al-Qaeda and that the President cannot "go it alone" and must "involve Congress and the Judiciary."

In what? The conduct of war? There are many activities in our lives that are not the business of government at any level - the Founding Fathers understood this quite well and tried hard to protect the sanctity of Res Privata, the counterpoint to Res Publica (public matters), which is the Latin term from which we derive the very term "republic."

There are other activities in our lives that are the province of state governments, those independent nations from which our three national governments - the one which commissioned George Washington to command the Continental Army (and issued money to support the war), the Articles of Confederation, first passed a year after the Declaration of Independence and under which these United States actually negotiated our separation from the British Empire, and our current (third) national government, the Constitution - were created.

There are a few activities in our public life that the Framers of the Constitution intended the federal government address, and almost always by "federal government" the Framers meant "Congress" which is why the First Amendment reads: "Congress shall make no law..."

There are no areas in which the Framers intended "the federal judiciary" to have a meaningful role, and virtually all federal courts except for the Supreme Court are creatures of Congress, which can create or destroy them, and even the Supreme Court has almost no powers except those conferred by Congress and even the size of the Supreme Court is determined by Congress, which can enlarge or contract the size of the Supreme Court.

The President and the Executive Branch - which were given under the New Deal authority to virtually set prices, limit production, fund propaganda, and in general buy votes - does have one clear and unmistakable role: defending America from enemies by military force. Are we in war? Well, America was not technically "at war" with Japan after the attack at Pearl Harbor (i.e., Congress had not yet ratified FDR’s statement that "a state of war exists,") and there was certainly no declaration of war in 1861.

Yet Franklin Roosevelt arrested Japanese, German, and Italian citizens and interned them in camps. He issued wide and sweeping executive orders for which he had neither sought nor received approval of Congress, including wiretapping and surveillance on citizens of the United States and our allies. At Casablanca, FDR even pronounced on behalf of the United Nations that only "unconditional surrender" would be accepted of the Axis Powers.

The Manhattan Project was funded under an absolute cloud of secrecy, and almost no one in Congress (much less the American people!) knew anything about it. Only, apparently, Stalin and the Soviet Union knew as much as FDR about our effort to build a fission bomb before the Nazis. Did anyone complain?

Abraham Lincoln not only arrested and detained without judicial or congressional involvement many citizens suspected of disloyalty, but he issued perhaps the most audacious executive order in the history of American war: the Emancipation Proclamation, which freed those slaves still in the hands of the "enemy" because they were contraband. Has anyone seriously doubted his authority or wisdom in doing so?

What would Messrs Daschle, Leahy, and Kennedy desire? That the President consult with them on which air units should strike what targets? On what priceless military intelligence is reliable and which is disinformation? Has any American president even gotten into the minutia of conducting a foreign war with individual members of Congress?

The role of the Senate is to "advise and consent" to appointments, which include some pretty important positions - and in that role Senate Democrats have not shown the slightest interest in protecting us or helping the President. Their sole and exclusive concern has been to embarrass or obstruct the man who is entrusted with protecting us from a clear and present danger.

What should President Bush do? Just about what he has done, or as Senator Zell Miller put it: "These nit-pickers need to find some other nits to pick." But there is one more thing the President might do - or threaten to do - if creepy types like Schumer and Rodham-Clinton don’t slither back into their dens: exercise another one of the few clear constitutional powers of the President, and almost totally forgotten, and under Article II, Section 3 of the Constitution. He should dismiss Congress.

Tell the American people that the Senate has become more disruptive to the conduct of our nation’s war than is safe and prudent, and so he is sending them back home. If necessary, he could even place guards around the Houses of Congress, saying that there is no good and much harm than Congress can do and that the members should go back home and talk to the people they represent.

Oh, the caterwauling! Oh, the moaning! These liberal Democrats represent only the people within their tiny salons, and the last thing in the world they want is to return to "flyover country" to hear what those ninety percent of Americans who support our Commander-in-Chief really think about them! Will he do this? Probably not. Should he think aloud about this option? Maybe so.

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Bruce Walker has been a dyed in the wool conservative since, as a sixth grader, he campaigned door to door for Barry Goldwater. Bruce has had almost two hundred published articles have appeared in the Oklahoma Bar Journal, Law & Order, Legal Secretary Today, The Single Parent, Enter Stage Right, Citizen's View, The American Partisan, Port of Call, and several other professional and political periodicals.

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