Monday, October 13, 2014

The Executive Is No Angel

There are a couple of quotes I’d like to contrast. This first is from James Madison, in The Federalist Papers, #51:
What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on the government would be needed.
The second quote is from that contemporary political mind, Gwyneth Paltrow, who held a fundraiser at her Santa Monica, CA, home last week. Besides gushing, “You’re so handsome that I can’t speak properly,” she advised all who would hear:
It would be wonderful if we were able to give this man all of the power that he needs to pass the things that he needs to pass.
James Madison, image from here;                      Gwyneth Paltrow, photo from here
If great minds think alike, then one of these divergent thinkers might not be a great mind.
Here’s what we know. Human nature means that no person—not even another George Washington—should be imbued with absolute power. If a person is neither God nor one of His angels, that person’s power should be limited. So, while it might be possible to pile up the complaints against our current president’s character (even though Miss Paltrow apparently can’t), the only necessary reason for being suspect and limiting his power is: he is not God, and he is no angel.
Our founders brilliantly identified three aspects of power—and wisely separated them: law making, law judging, and law executing.
There’s a new course offered online, for free as usual, from Hillsdale College, called The Presidency and the Constitution, with Dr. Larry Arnn giving the introductory lecture. In lecture 1, around 17 minutes in, he gives this background on separation of powers:
In the Declaration of Independence, there is separation of powers. It occurs in two ways. In the first way, in the middle of the document, a largely ignored but incredibly important part of the document, they gave the reasons why they’re doing it. The bad stuff the king has done. There are 17 of them, and several of them are violations of separation of powers: made judges dependent on his will alone, suspended legislatures and interfered with their operation. And so here you have an executive, and he’s actually getting control—and in English history sometimes the king did have control—of all of the processes of government, making him a law unto himself. And so, that’s condemned in the Declaration of Independence. That is grounds for revolution, if that happens.
But then the second way is, if anything, more sublime. And that is, the branches of government are named in the Declaration of Independence in relation to God. God appears four times. Once he’s the creator. That’s like a constitution maker, like a founder, if you see that in political terms. And it would be right, I think, to see it in political terms, because here we have a sublime political document. The first time He shows up, He’s the maker of the laws of nature and of nature’s God. He’s the legislator.
Then later, toward the end of the document, He’s named as the supreme judge of the world—the judicial branch. And as divine providence, the executive branch. And the lesson from that is plain. The way God is addressed is the way He is viewed.
And then these complaints against the king, about his violation of separation of powers, that it is in the hands of God alone that you would place all the powers of government. And any man, like King George III, who tried to arrogate those powers to himself—that would be an evil. Not to be trusted.
Absolute power is not a new threat. It wasn’t even new in the days of King George III. Tyrants seeking absolute power have been the norm. But not right. Absolute power in a human being—or even a small number of humans—is an evil to be avoided. On the Spherical Model, it is southern hemisphere statist tyranny.
I came across another source this week, also from Hillsdale, about separation of powers. September’s Imprimis article is “The History and Danger of Administrative Law," by Philip Hamburger, of Columbia Law School. He defines administrative power as a modern version of placing multiple powers in the hands of the executive—in other words, just another form of tyranny.
He says, in introduction,
Administrative law is commonly defended as a new sort of power, a product of the 19th and 20th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.
He compares what our current form of executive-appointed administrative rule with the long-familiar prerogative power of kings. He uncovers three types of prerogative power—all of them precluded by our Constitution: extra-legal, supra-legal, and consolidated power. He explains:
Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations. Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers. Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts. Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law. But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.
When we see our president—and not just the president, but the legislature, by not doing their duty, but turning it over to some regulatory agency—writing thousands of regulations, such that no human could possibly identify them and abide by them, that is the same old tyranny we’ve seen before. When he decides, using waivers, whom he will choose to exempt from laws and regulations, again that is the same old tyranny rule. When he has regulatory agencies judge whether a person is in defiance of a regulation and can then fine and/or imprison that “wrongdoer,” that is not what our founders would call divided powers. That is the executive branch (president, potentate, dictator, king…) making the laws, judging the laws, and executing the enforcement of them.
What we have is the very mess we declared independence from back in 1776. So what do we do now?
Hamburger offers this simple-but-not-easy starting point:
The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law, understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.


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