Leadership, the Law, and Statesmanship*
By Sol W. Sanders
Sunday, August 10th, 2014 @ 7:14PM
One bright note in the sour symphony coming out of Washington these past few weeks is the Supreme Court’s decision on recess appointments. In an emphatic unanimous decision, the Court reinforced the authority of the separation of powers and the hope that it will be the last and final successful bastion of constitutionalism.
You don’t have to be a lawyer nor have pretences as a constitutional law professor to understand the argument.
President Obama had taken it into his head to use the constitutional provision for appointments to the executive to be made during a Senatorial recess while the Senate was actually in session, thus negating the requirement of “advise and consent”. The Founders, in a day of poor communications and (alas!) the hope of a part-time federal government in the carefully isolated, hoped for, non-political federal capital, permitted appointments to go ahead for efficiency if the Senate were not in session.
Obama decided that since the Senate was not conducting legislative business, it was not in session. But the Court upheld a very important principle, that is, that the legislative branch would make its own rules and not be dictated to by the executive or any other outside party save the voters. The Founders saw the need was critical. For unless the legislators were charged with their own agenda, the legislature risked becoming an appendage of an all-weaning executive. It had taken the British centuries and a civil war to establish their own principle of parliamentary supremacy in which the legislature was not only independent but by far the dominant of the three wings of government
So, in a sense it was a simple, clear cut and common sense decision. The Senate is in session if it says it is in session, the White House’s or others’ views notwithstanding.. And all the rationales of Obama’s partisans about “pro forma” Senate sessions is errant nonsense.
Whether or not, as other recent Court decisions appear to indicate and more are to be anticipated, Obama has exceeded his authority in his “pen and phone” approach to government when the Congress is stymied, may remain for the historians to determine finally. But the argument that his executive orders are less in number than his immediate predecessors is obviously another one of those foolish statistical gambits. It is not the quantity but their quality. And his half dozen or more changes in the law for Obamacare, for example, written and passed by the two Democratic majority houses of the Congress (in an outrageous flaunting of tradition for critical and fundamental bipartisanship) appear to be equally unconstitutional.
There is an argument that in national crisis — particularly applicable to foreign affairs and military procedures — the president has the prerogative to go beyond the literal limits set by Congressional legislation. It has hoary tradition if not the weight of argument. Obviously appointing additional members of the National Labor Relations Board did not qualify for that kind of special consideration.
But there have been many instances that have. On May 25, 1851, for example, Abraham Lincoln suspended habeas corpus. A writ of habeas corpus is a court order that requires a person under arrest to be brought before a judge or into court. It dates as far back as the 12th century and is one of the foundations of Anglo-Saxon jurisprudence and its grateful heirs around the world. Five years later, by inference, a Supreme Court justice was to condemn Lincoln’s action as unconstitutional but the wartime president insisted it had been done in order to facilitate his effort to put down the Southern rebellion. Lincoln’s action, in part, kept the slave-holding states in the union with the opening of the civil war, a strategic necessity for the North and perhaps for victory.
Less controversial, at least among the Washington politicians in both parties, was President Franklin D. Roosevelt’s “destroyers for bases” swap with Britain’s Winston Churchill in September 1940. FDR, without formal Congressional authorization, transferred a fleet of ageing destroyers to Britain — facing a possible Nazi invasion across the Channel — for access to British bases in the Western Hemisphere. Although the deal had the private support of some Republican leaders, it was an obvious breach of legality and the Constitution. Even FDR, that most popular of presidents, carefully prepared the groundwork for the illegal transaction. Roosevelt and much of the political leadership favored aid to a beleaguered Britain, fearful of Hitler’s threat to European domination and world conquest. But they faced an American public with its hangover from World War I still overwhelmingly determined to stay out of Europe’s “squabbles,” until the Japanese attack on Pearl Harbor and Hitler’s declaration of war on America brought the U.S. into World War II.
Again, the exigencies of war were the rationale for what FDR did. But perhaps there is another moral in this case: FDR was able to act on a dinnertime proposal made in part by two journalists, Henry I. Luce and Joseph Alsop, through a good deal of backdoor negotiating with politicians — including the opposition — for something the leadership knew was a necessity but public opinion would have rejected.
That kind of liaison and “politicking” — and statesmanship — seems to be beyond the capacities of the Obama Administration, for whatever reason.
*A version of this column can be found on yeoldecrabb.com.