Summary: Presidential power has been growing for generations. Nothing can stop it except impeachment and removal of a president. Until we find the will to use this tool, presidents will continue to regard us with contempt. Rightly so.
We can prevent the eternal reoccurrence of tyrants.
I love US political news. Each side’s loyal journalists provide clear coverage of the misdeeds of their foes, but remain blind and amnesiac about the similar deeds of their politicians. Democrats and some Republicans express outrage at Trump’s assertion of a Monarch’s powers. For example, see Fred Kaplan’s “Trump’s Contempt for Democracy Has Reached New Depths” at Slate – “The president is defying the Constitution amid the crisis with Iran.” Kaplan, like the Democrats, forgets that Obama did the same several times. Just as most Republicans forget that Bush Jr. lied to begin our war on Iraq.
For decades Presidents have used lies to start wars, flouting the authority of Congress and the clear words of the Constitution. Trump is playing the usual script, and most conservatives (e.g., those at National Review) are singing his chorus. Some of the usual voices have made the usual definitive rebuttals, such as Gareth Porter debunking the lies in “Pompeo’s Gulf Of Tonkin Incident” at The American Conservative – “Don’t take the events that led to Soleimani’s killing at face value. Vietnam may seem like a lifetime ago, but its failures and lies loom.”
But as we saw in America’s long occupations of Iraq and Afghanistan, logic and facts play no role in American politics.
Our elected representatives speak out
Daniel Larison and Rod Dreher collected some of the more outrageous statements by Team Trump. They believe that Trump is a Monarch, that they are his servants, and that we are his subjects.
Politico reports that Senator Mike Lee (R-UT) said that the officials warned against even debating legislation to restrict President Trump’s authority to strike Iran and that critical comments were “un-American” and “unconstitutional.”
“The worst briefing I’ve seen – at least on a military issue – in my nine years {in the Senate} …They had to leave after 75 minutes while they’re in the process of telling us that we need to be good little boys and girls and run along and not debate this in public. …I walked into the briefing undecided. I walked out decided, specifically because of what happened in that briefing.”
Senator Lee revealed more in an interview on NPR. Lee does the usual shtick of approving whatever the president has done (otherwise Lee might have to take action) but wondering in soft words what might happen next. This is a man who will clutch his pearls in protest but never take action.
“My anger was …about the possibility of future military action against Iran. And it was on that topic that they refused to make any commitment about when, whether and under what circumstances it would be necessary for the president, or the executive branch of government, to come to Congress seeking authorization for the use of military force. I find that unacceptable.
“I want to be clear with respect to the strike against Soleimani, that was arguably lawful. I still have questions that remain unanswered on that point. …What I’m most concerned about is about where that goes from here. What comes next? Is there another strike coming against Iran? If so, at what point do they need to come to us seeking an authorization for the use of military force? The fact that they were unable or unwilling to identify any point at which that would be necessary yesterday was deeply distressing to me.
“As I recall, one of my colleagues asked a hypothetical involving the supreme leader of Iran. If at that point, the United States government decided that it wanted to undertake a strike against him personally, recognizing that he could be a threat to the United States, would that require authorization for the use of military force? The fact that there was nothing but a refusal to answer that question was perhaps the most deeply upsetting thing to me in that meeting. I think it was unprofessional, inappropriate and reflective of a certain cavalier attitude toward the Constitution to refuse to make a commitment on that front. …
“At one point, at least one of the briefers discouraged us even from having a debate on the Senate floor, including, among other things, in the context of a War Powers Act resolution talking about future military action – that that might somehow embolden the Iranian regime in future attacks against the United States and wouldn’t be helpful. I think that is the very kind of advice that is counterproductive and decidedly not helpful. And I found that upsetting.”
Lee is upset. Lee speaks boldly before the cameras but does not even hint at doing anything. Lee’s words show why Team Trump rightly holds Congress in contempt. If we elect poofs like him, we should not expect them to defend either us or the Republic.
More broadly, removal from office is the primary check on presidential power. But a supermajority in the Senate is impossible when our representatives hold loyalty to their party more highly than loyalty to the Republic.
Lawyers against the Republic
There are always lawyers to justify the step by step growth of tyranny. Such as Eric Posner (Prof Law, U Chicago; bio here) and Adrian Vermeule (Prof Law, Harvard, bio here). They wrote the bible for the post-freedom era: The Executive Unbound: After The Madisonian Republic. The Republic has died, long live the King! You can download the first chapter at Amazon. it reads like a stage hypnosis act: it’s necessary, it’s inevitable, it’s necessary, it’s inevitable. Here is Eric’s summary (at the Volokh Conspiracy).
“The book argues that the Madisonian system of separation of powers has eroded beyond recognition and been replaced with a system of executive primacy (which others have called the “imperial presidency”) in which Congress and the courts play only a marginal role. Most scholars who have recognized this development have called for a return to the Madisonian system, but we believe that the rise of the executive has resulted from a recognition among political elites that only a powerful executive can address the economic and security challenges of modern times.”
Posner shows how the new State works, looking at the exercise of its greatest power – making war: “Why Congress Played No Role in the Libya Intervention“, Volokh Conspiracy, 21 March 2011 — Excerpt:
“President Obama is following a long line of precedents in which the executive launched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.”
As always with innovations in the West, they go back to either Weimar or Nazi Germany. Posner’s intellectual roots are, of course, from the latter – as former CIA officer Philip Giraldi explains.
“Posner studied philosophy as an undergraduate at Yale. He might have been better served if he had paid more attention to history. His views are not dissimilar to those of Carl Schmitt, the Nazi jurist, who argued in similar terms to those promoted by Posner, that a powerful executive is imperative in time of crisis. Schmitt favored a military dictatorship to solve Weimar Germany’s problems. Posner is, in fact, an admirer of Schmitt, having written approvingly ‘governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic or military conditions change rapidly and cause exogenous shocks to the constitutional order.’”
Conclusions
As I have written so long many times. We are alone in the defense of the Republic.
I doubt that anything can stop the growth of the president’s power – except for the threat of impeachment. And that might not become meaningful until Congres removes a President from office. Presidents back to LBJ have given ample grounds to do so. But that will not happen so long as partisan loyalty remains stronger than our love for the Constitution and the Republic – and the president’s party defends him despite his violations of the law.
Presidents’ will ignore the Constitution with increasing boldness until we demand that Congress act – and vote against those who refused to do so.