June 04, 2016

Lessons from Obama

The American founders had the very good idea that they could prevent the development of tyranny by dividing the functions of government into three independent parts: Legislature, Administration and the courts.  And they had another safeguard too:  A procedure for impeaching a lawless president.

All those safeguards have now broken down.  As president, Obama's job is to administer the law, not to make it.  But he openly flouts that.  What he cannot cajole the legislature to do, he boasts that he will do with phone and pen. He has no shame about usurping the role of Congress.  He acts like a king -- exactly what the founders wanted to prevent.

And SCOTUS too has set itself up as yet a third legislature.  They interpret the constitution to mean whatever they want it to mean-- regardless of what it actually says.  So they find a right to abortion in the constitution when the word is not even mentioned there and they deny protections that ARE mentioned there. Despite the equal treatment clause, they approve  various forms of "affirmative action", which are nothing if not arrangements to treat people unequally, dependent on their race, sex or anything else.

And what can anybody do about these usurpations?  Nothing.  But that should not be so.  Something should be done to pull these arrogant people back to within their constitutional roles.  Impeachment founders on the generally rather even divide of voting power in the Senate and the way that an impeachment vote will rarely deviate from party loyalties.

So some new mechanism to rein in these improper power grabs is clearly needed.  Dealing with SCOTUS is fairly easy.  Congress has the power to specify what SCOTUS can consider.  So Congress can simply pass a law saying that (for instance) any consideration of race in hiring is forbidden and add the rider that that particular law is not within the authority of SCOTUS to consider.

So it's the presidency that is the big problem.  And it would seem that only an age-old method is likely to suffice.  It is a method easily abused but it could be formalized in a fairly safe way:  Military intervention.  A constitutional amendment would be far too difficult to get through and, as we have seen, constitutions are too easily defied.

What could be done, however, would be to pass a law setting up  a consultative committee comprising the heads of the four main armed forces -- Army, Navy Airforce and Marines.  And the duty of that committee would be to observe a President and, on their own initiative, warn him whenever he overstepped his legal powers or failed to administer the law.  And if the warning was not heeded, a military unit (Marines?) could be delegated to arrest him and put him on trial before a court martial.  And that court would have the power to detain him in secure custody until the next President is elected.

A wily president would of course put in his own men as heads of the armed forces as soon as he came to office.  And that could indeed weaken the safeguard.  One should however remember President Salvador Allende of Chile.  Before he tore up Chile's electoral rolls he put a safe, non-political man in charge of Chile's armed forces.  That man was Augusto Pinochet.  And there are other instances of that general kind.

Australians will remember the dismissal of Prime Minister Whitlam by Governor General Sir John Kerr, his own appointee. No blood was spilt on that occasion, showing that the peaceful and orderly dismissal of an elected national leader is possible -- but Australia does have the advantage of being a constitutional monarchy, so there is some supervision of the politicians -- JR




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