Of Presidents and Derelicts

Barack Obama is no fan of the Constitution.  He has been known to criticize it for its focus on limiting government, for telling governments what they can and cannot do.  He prefers a Constitution that focuses more on telling governments what they should do, at least telling governments to do what he would like, including seeing to the “redistribution of wealth,” or what he calls elsewhere “redistributive change.”

Of course, that is a mischaracterization.  Not a mischaracterization of Obama’s views but of what the Constitution says.  It does limit government, but it also gives government specific responsibilities and the power to exercise those responsibilities.  Article I, Section 8 provides a very clear list of the federal government’s duties.  It is noteworthy that those enumerated responsibilities and powers are in the Article that establishes the Congress.  The list includes such things as providing for the common defense, borrowing and paying government debts, regulating foreign and interstate commerce, establishing standards for weights and measures, and so forth.

There are plenty of other provisions that limit the powers of the government and how it operates.  The Constitution is a balance of governmental duties within a structure intended carefully to limit the government.  As a limited government our Republic has prospered.  It has struggled either when its duties were neglected (as in the days of President Buchanan, who did nothing while he watched state after state rebel from the Union) or when the limitations have been eroded (as we have witnessed through much of the twentieth century and in the first 14 years of the twenty-first).

The President has specific powers and duties, too, nearly all of which are carefully linked with the role of the Congress.  For example, while the President does not make the laws—Article I, Section 1 gives “All legislative Powers” exclusively to the Congress—the President is authorized to make proposals to Congress and has the authority to veto legislation (but not change it) that Congress has approved.  Once an act of Congress becomes law, the President then has the explicit obligation to, “take Care that the Laws be fully executed” (Article II, Section 3).  

Note the words, “fully executed”.  The President takes an oath to fulfill those duties, and nowhere in oath or Constitution is the President authorized to execute the laws only as much as he likes or agrees with them.  Once something has become a law, the President may not set aside this or that part of the law or decide that he will only enforce the law so far.  His obligation is to take Care that the laws are fully executed.

Average Americans may not like this or that provision of law, but we are not at liberty to ignore any law that applies to us just because we do not like it.  The President is not exempt from that common responsibility of all citizens, either. As the chief government executive, who sought to hold his high office of public responsibility, he is even more obligated not only to obey the laws but to execute them, fully.  The President may not make the laws, he may not amend the laws, he may not change the laws, and he may not disregard the laws.  His duty is to execute the laws, and when he does not he is derelict in his duties. 

This is all in accordance with the important division of labor, the separation of powers that the Founders put into the very structure of the Constitution to combat the tendency of all humans to abuse power once it comes into their hands.  By dividing the power of government among three separate but coequal branches, dividing legislative power even further between House and Senate, and yet again separating government power between federal and state governments, the Founders went to clear and elaborate lengths to create checks and balances. 

Under the American system of government no branch, no person, no group of people in government, are to be able to do very much on their own without getting the other elements of government to go along.  Where they are not able to agree, where there is no consensus, for the safety of our freedoms government is prevented by constitutional law from moving forward unless substantial consensus among the different branches can be reached.  Those checks and balances again and again, throughout the more than two centuries of our Constitution, have forced the very human people in government to revisit their differences and come to terms with one another, however much they may disagree and be disagreeable.  There is safety for you and me in that.  And it helps keep our Union together, repeatedly forcing our leaders (and the parts of the nation that they represent and whose authority they exercise) to work with one another, like it or not.

Recently, President Obama has expressed impatience with the Constitution’s checks and balances.  After all, he personally, in and of himself, embodies an entire branch of government.  The other branches, Congress and the courts, have many different people with a messy variety of ideas.  President Obama complains that Congress cannot decide what it wants to do as quickly as he can.  In his view, why wait? 

By design, Congress of course has something of a multiple personality.  It is a gathering of elected representatives, reflecting the diversity of views among the people of the nation.  Appropriately, it takes time to build a consensus that accommodates those views, as it should.  But President Obama cannot wait.  He sees the need to accommodate no ideas other than his own.  He has decided that on this issue or that—today it is immigration laws—there is a limit, defined by himself, as to how much time Congress can take to consider things.  When time is up, he, the executive branch, will take the matter into his own hands, and pretend to the authority to do it.

His tool of choice today is to abjure his duty to execute the laws fully and instead to execute them partially, just to the extent and manner that suit his own desires, as he engages in another round of redistributive change.  That he is endeavoring to violate rather than execute our national, founding law, and his constitutional oath of office, apparently does not trouble him.  It is the Constitution itself that troubles him. 

But from where does he think he gets his authority to do anything.  When he breaks the Constitution, does he not break his very authority to act in the office that the Constitution created?

Of Majorities and Modesty

Perhaps with some weeks enough dust has settled to allow a few reactions to the recent American elections, with more perspective than can be gathered from listening to reporters interviewing reporters.  I will offer views that focus mostly on the results of the congressional elections, drawing upon experience from more than two decades of work in the Senate. 

I do not, however, wish to minimize the importance of the elections for governors and state legislatures.  In fact, I suspect that the next President of the United States will more than likely be a current or former governor than a Washington politico.  Most Presidents, historically, have come from the state governments, which I find encouraging for our federal system.  Moreover, judging from what we have seen, former Senators do not seem to make very good Presidents.  I cannot name one to whom we can look with admiration for what he accomplished in the White House.  There seems to be too much Washington blindness in them to govern effectively for our whole nation.

I am straying to an election yet to come, though.  Back to this year’s results, I will begin with the view that we should expect, with the media-scorned Republicans holding the majority in both House and Senate, that the finger of blame for all problems—real or imagined—will be pointed at “Congress.”  Disputes between legislative and executive branches will tend to be cast as exposing the nation to great danger as a result of congressional intransigence and/or “politics,” as if no real issues of policy—no questions of life, freedom, or wealth—are involved.

It is happening already.  In one bizarre report I heard this week on a major network “news” report, some Amtrak railroad drawbridge in the northeast is over a hundred years old and prone to getting stuck when it opens to let ships pass.  Amtrak wants a billion dollars or so to fix it, but, as the “news” story would have it, Republicans in the new Congress “are not looking for ways to spend money.”  That was the story.  Note the nothing new here.  The bridge has been around for a hundred years and did not suddenly become prone to malfunction this November.  But the election has now made it a story; a problem is arising, not because the President or the Democrats in Congress for several years did not seek to fix it, but because the new Republican majorities are not interested in spending money.  The bridge is not the problem in the story, the Republicans are.  Expect more of this kind of media “news.”

Second observation:  in recent decades Congress has increasingly surrendered more and more authority to the executive branch, including to the regulatory agencies.  The Senate, under the misleadership of Majority Leader Harry Read, has given up even more power and authority (perhaps in another post I will expound on lessons from the Senate of Rome, which by avoiding decisions paved the way for the Caesars—who were all too ready to make decisions).  The Democrats retain full control of the executive branch.  No small thing. In the remaining two years of the Obama Administration look for more aggressive activity from the White House and the regulators as they test just what they can try by regulation and regulatory fiat, without any detours to Capitol Hill.  To quote Jacob Marley’s ghost, “Much!”

When it comes to big Republican plans to make major changes, the quidnuncs will be fed explanations of the thinness of the Republican majorities, along with the “responsibility” of Republicans to share power with Democrats that the Democrats failed to win at the ballot box.  When it comes to work that needs to be done, the repeated common wisdom will be that the Republicans have the majority, so nothing should stop them from getting on with the job.  There will be little mention that the President can veto what Congress passes, and that Democrats  in the Senate will likely filibuster anything that the White House threatens to veto, saving the President the trouble—and political risk. 

Yet, there are things that the Republicans, even with working but not overwhelming majorities in Congress, will be able to do.  Most important, they get to set the agenda.  They get to decide what issues will be debated, what hearings will be held, what will be put to a vote, even when they may not have the votes to break Democrat opposition in the Senate.  It will be some relief that instead of the familiar series of proposals to curb liberties, raise taxes, or stifle economic growth and opportunity, the agenda will tend toward ideas of freedom and prosperity, though actual accomplishments will of necessity be modest against the strong opposition of the President and his media allies.  I will take modest improvements over the calamitous policy fails of the past several years.

Of Dysfunction and Governing the Nation

It seems that no more evidence is needed. The establishment press, normally loath to criticize the federal government, has at last become even fond of proclaiming that “Washington is dysfunctional,” although they do so as if announcing something worthy of being “news.” The Senate has not passed a budget in some four years. The House of Representatives regularly passes budgets that the Senate will not even consider. The President—who has no budget-proposing role under the Constitution—proposes budgets that are routinely disregarded while declaring his intent to govern without the Congress. At the same time, people feel more alienated from their government than ever before, in ever increasing numbers considering the nation headed in the wrong direction, regardless of the party in control of national policy.

In the most recent demonstration of the Washington breakdown, the Congress this year failed to pass the annual appropriations bills before the current ones expired. Or, better said, the House passed appropriations bills, the Senate demurred, and the President announced that he would veto any appropriations legislation that offered either more or less than what he wanted.

The establishment press, amplifying executive branch efforts to promote panic and stampede the public, announced that “the government would shut down,” and yet 83% stayed open. Some prominent public operations (that do not require any appropriations to operate) were closed at the President’s bidding, like the Lincoln Memorial and the various veterans and war memorials, but the President seemed to have enough money to travel to various campaign-style rallies to complain about the government shut down. There was national confusion and consternation.

Perhaps what is news is that there is, at last, general agreement, and the President has helped demonstrate, that the federal government has become dysfunctional, by which we may mean, not doing what it needs to do. I also notice that this condition has not been getting any better. In addition to the recent, visible indicators, I would offer some longer-term measures.

Economic growth is depressed and has been declining for decades; employment is also down, with millions leaving the work force. Government welfare rolls have expanded dramatically, suggesting that a very large portion of the population is either not able to take care of itself or has surrendered its responsibility to do so. The federal balance sheet approaches ever closer to insolvency. To avoid being gloomy and doomy, I will not recount dismal education trends, eroding family formation patterns, the precarious condition of national infrastructure, or our worsening international relations (with allies and opponents).

Yet, the federal bureaucracies are far larger, taxes—visible and hidden—are higher, red tape has become ubiquitous, and federal subsidies have fallen behind promises even as they outdistance the ability of the federal government to pay for them. If government is the solution, then why is more government not making things better?

How could this happen? Have we as a nation lost our ability to govern ourselves? Have “partisan politics”—as though something new rather than part of our national intercourse since 1796—frozen the ability to consider, set, and follow national priorities? Have the problems of modernity exceeded the ability of policymakers to resolve them?

A case could probably be made for each and all of the above explanations. I think, however, that they are all symptoms of a more fundamental problem, one recognized long ago, at the founding of the nation.

As early as 1787 the Founders recognized that a central government would not work for the United States. Even with just the original 13 states and 3 million people, the nation was too vast to be governed in detail from one capital. That is why they created a federal system, under which the few, truly national concerns—such as national defense, trade, international relations, national standards of measures and sanctity of contracts, preservation of freedom and the rule of law, together with the means to fund these activities—would be handled by the national government. All else was reserved to the States.

Note that I did not say given to the States. Remember, the States and the people in them created the national government. The States and the people in them gave to the national government its authority and power.

Today, the United States stretches across a continent and reaches to the isles of the sea, with over 300 million inhabitants. It is even more impossible than ever to govern from a single capital, by a centralized government. We all have seen the evidence, in addition to the growing dysfunction of Washington. Everyday, people all over the nation struggle with rules made by the federal bureaucracies, rules that are often nonsensical where people live and work and play, rules governing the volume of water in our toilets, the content of our children's food, the gasoline in our cars, the content of our communications, the form of our financial affairs, and many other elements of daily, personal life. Even worse, they have become too vast and complex to be administered faithfully or complied with loyally.

We could fault the executive branch bureaucrats who make them or the Congressmen and Senators who write the laws, but these people are no smarter or dumber than the rest of us, and just as well meaning. They just have an impossible job. No one can know enough to run so many things from Washington.

Consider the big issues that seem to have Washington all tied up in knots—in turn afflicting all the rest of us. The new national healthcare systems are breaking down even as they get started. National rules for farmers have Congress stuck over who should get subsidies and who should not. National tax plans designed to take from some to give to others divide the people into winners and losers. Environmental regulations impose costs on some in order to subsidize someone else. National education programs follow each other in rapid succession, each with a new and high-sounding name, none of which do much to stem the continued decline in education. And ever present with all of these national rules are unintended consequences that were not and probably could not be foreseen but which crush people’s businesses, destroy jobs, and disrupt lives.

These are all issues that the Founders never intended for the national government, issues that if governments should address at all should be left to State and local governments, where decisions can be made closer to the people who have to live with the results.

We have at hand a better, competent government, or at least its blueprint. It is found in the structure of our Constitution that created a federal system. Our Constitution is the recognition that only through a system that keeps governing as local as possible can a great nation exist in union and harmony.

What we are seeing play out before our very eyes is that our nation not only should not be governed by a central authority, but that it cannot be. The sooner we recognize that and return to the federal plan of the Founders the happier, and the sooner Washington will be able to function as it should for the benefit of all rather than frustration for all. The task is too big otherwise and doomed to failure. It will not be a pleasant failure.

(First published October 27, 2013)

Of Closed Governments and Coming Together

Battered and bruised and stretched and torn, our Constitution still has life in it.  One of its central principles is that no one person can do much by himself in Washington, for good or ill.  We are watching that play out in this year’s appropriations process.  We see that it is impossible for one man, the President, to make a new law.  It is similarly impossible for one House of Congress, whether Senate or House of Representatives, to do so alone.

Under the Constitution, all appropriations bills must originate in the House of Representatives, where they are given their initial shape and substance.  Next, the Senate must concur or amend.  If the Senate chooses to amend, the bill goes back to the House, which can either agree to the Senate amendment, disagree, or disagree with a further amendment.  If there is disagreement, representatives from House and Senate can meet to resolve those differences.  If they do and succeed, then each House, first one and then the other, passes the bill, after which it is sent on to the President.

It is still not a new law.  According to the Constitution, the President may not amend the bill that has passed both Houses of the Congress.  He can choose to sign it, making it a law.  It does not become a law unless he does.  He can choose to veto it.  In the latter case it goes back to the Congress, where it can only become law if both Houses override the President’s veto.

I lay this process out in some detail, because to listen to the institutional media and most of the pundits you might think that they have all forgotten, or never learned, how the constitutional process of making laws works.  It is not an easy process.  In fact it was meant to be difficult.  Some seem to wish it were easy, at least for enacting the policies that they favor.  They would wish to make one or more constitutional parties to law making redundant and of no separate account or purpose other than to do the will of their favorite other.  They should, instead, take comfort that it is easier to defeat policies that they oppose.

The genius of the Constitution for making laws is that it requires three separate parties of people, sometimes with very different views, to come together to make anything a law.  The Founders made it difficult because they were not very fond of new laws.  They knew that an abundance of laws could mean a scarcity of freedom.  And so it is today, but it has taken over 200 years to build up the awesome pile of laws that regulate so much of our lives, and yet it still is harder to make a new law than many would wish.

Our Constitution requires that a lot of people have to work together to make a new law.  When they do not, nothing happens.  That is why much of the federal government has run out of money and has “shut down.”  A new law is needed to appropriate the money for these shuttered parts of the federal government to open. 

They will continue to be without operating money until the elected representatives in the House and Senate and the President work together to make a new law.  The Constitution forces them to work together.  Nothing will happen until they do, whether that takes a day, a week, or longer.  The Constitution requires sufficient cooperation for law making.  For either House, or Senate, or President to be able to make laws without the other would impose the tyranny of one set of views over the rest.  The Constitution will not allow that.  The Constitution forces a meeting of the minds, either by persuasion or by compromise, or in practice some of both.

The Constitution is a beautiful thing.  I rejoice in it.  I can be patient for a while as it does its work and forces our elected leaders to come together.  The issue is not keeping parks open. The issue is preserving our freedom and our society.  The Constitution still has some power to do that.

Of Elections and Sports

It is early Fall.  That means that we are nearing the end of the regular season of baseball, and the New York Yankees are on course to make the playoffs and another run for the World Series title, number 28.  Their chances look good this year, if they can keep their players from injury and the bullpen resumes pitching up to its abilities.

Others are following football.  Already the Washington Redskins have gone from having a lock on getting into the Super Bowl, after winning their first game, to being nearly mathematically eliminated from the playoffs by losing their next two.  As they say in baseball, though with less justification in pro-football, it’s a long season.  And speaking of the Redskins, it has been said that you can tell that someone has been in Washington too long when he begins cheering for the Redskins.  Let that rest on your own taste and experience.

Basketball fans know that in just a few weeks, practice begins for college hoops.  The college basketball season will terminate several months later in the greatest sporting event that the United States has to offer, March Madness!  I don’t know when or whether the professional basketball season ever ends.  I suppose it does.

Somewhere someone is playing soccer, where some team is leading another by the insurmountable score of 1-0.  But I think that we may be in the only few weeks of the year when there are no hockey games—even as the NHL is haunted again by more labor-management strife.

At his school my son is running on a cross country team, the Trinity Tempest.  The motto of the team is not but should be, “Tempest Fugit.”  Instead, it seems to be something like, “Pass the weak, hurdle the dead.”  Nice so far as it goes.  Classical Latin would be better, it seems to me, but I am not a runner and have no say.

Yes, there is much sporting excitement and many sports in the Fall.  Elections, however, are not one of them.  Electing the leaders of our government, who will wield control over life and death, freedom and slavery, prosperity and poverty, is not a sport.  Self-government is one of the most serious activities of life for those who cherish their liberty.  Those who do not will eventually vote away their freedom, as we have seen in places like Venezuela, Ecuador, and Bolivia in recent years, and before that in places like Germany of the 1930s.

Of course, you would never know that from the public discourse on television, radio, in newspapers and other media outlets.  Presidential, gubernatorial, and congressional races are treated as if they all were games, with little at stake other than whether your favorite team wins.  Issues are trivialized, if mentioned at all.  The trivializers have even assigned team colors, one side “Red” and another “Blue.”  The most important issue in the media after a debate is “who won?” rather than, “what did we learn about what a candidate believes and what he would do if elected?”  Points are awarded by press experts for style, poise, rhetoric, and gotcha lines.  Panels of talking heads award scores as if they were judges at a figure skating competition.

It is all more than beside the point.  It corrupts the process.  Rather than true debates, in which candidates have enough time to declare and explain their views and policies on important issues, media celebrities offer trick questions, to which the future President of the United States is given two, three, or sometimes even five minutes to respond as he or she fishes for a soundbite to make it into the 60-second news recap (most of which will again be focused on, “who won?”).  Based on this silly exercise, viewers are encouraged to text in (for a small fee) their vote—not for who would be the best office holder—but for who was the winner of the night’s contest.

We should expect and demand better.  Through modern revelation we have been given a set of standards.  You do not have to be a believer in revelation to recognize the wisdom of the counsel:

Wherefore, honest men and wise men should be sought for diligently, and good men and wise men ye should observe to uphold; otherwise, whatsoever is less than these cometh of evil.  (Doctrine and Covenants 98:10)

Our task as voters interested in preserving our rights and freedoms is too seek out diligently the honest, the good, and the wise.  Anything less is evil.  In an election, in a campaign, in a debate, I want to discover who is the honest, the good, and the wise, and I am little interest in style points. 

That takes careful and diligent effort, for among the honest, the good, and the wise, are the liars, the false, and the foolish intent on deceiving.  These latter like to hide in the noise of the sporting contest and often seek to divert attention to the things that little matter, the stray word, the high school prank.  We need to keep our focus on a diligent search for the honest, the good, and the wise.  With persistent effort, we can find them.

 

In self-government, we are the players.  The issue is life, liberty, and the pursuit of happiness, decidedly not a game.  But if we follow these standards and apply them diligently, then in the end We the People will be the winners.

Of Government and Getting What We Deserve

There is a theory that I believe but I am not sure how to prove (this side of the final judgment) that over time people tend to get the government that they deserve.  This idea comes to mind when I hear complaints in the public media about the Congress.  You have certainly heard them.  They come in various flavors, but they are the same soda:

• Why can the Congress get nothing done?

• Congress is unable to rise above partisan politics.

• The people in Congress seem so out of touch with the rest of America.

• Congress avoids making tough decisions.

You could surely add to this list.  The underlying theme is that the Congress is not doing its job.

These comments are a frustrating alloy of truth and silliness.  There is a lot that is right and wrong with the current Congress.  Who put these men and women on Capitol Hill?  With the exception of a handful of Senators appointed by their governors to fill temporary vacancies, and the few dozen congressmen who by order of the Supreme Court must be elected in districts where there really is no democracy (I refer to those from districts mandated by the courts to provide only minority representation), all of these congressmen and Senators were elected—by the people whom they represent.

I mention that to refer to both sides of the coin.  We, the people, put those people there.  The other side is, we the people can send them home.  That is a weighty responsibility, one that we cannot discharge faithfully by just complaining.  We cannot do our legislators’ jobs for them and be involved in all of the minor details of all that they do, but we can and must hold them accountable for the sum of what they do and for the general tone and direction of their actions.  To be successful we need to have a clear idea of what we want our representatives to do and be well educated about what they are doing—not just what they are saying.

One of the sillier comments I hear is the suggestion that we should “throw them all out.”  Is that true?  Is every single congressman and Senator doing a bad job?  Even a basic review of congressional action should tell us that is not the case.  On nearly all of the most important issues there is in fact quite a divergence of views and actions.  Again, our inescapable job is to figure out what is the right policy and look carefully at how our elected representatives are conducting themselves with regard to it.  We should weed the garden, not plow it under.

There are many policies and many issues from which to choose.  Let me suggest two.  The first would be the Constitution.  What have been the actions of our own particular representatives with regard to supporting and defending the Constitution and the rule of law?  Our current President has been active in undermining the Constitution and disregarding the rule of law, so this is not a theoretical issue.  What have our representatives been doing to combat voter fraud, to make sure that the executive branch does not spend money that has not been appropriated by Congress, or to prevent bureaucrats from telling law abiding people how to spend their money, run their businesses, freely express their opinions, or observe their religion?  There have been many other assaults on the Constitution by people in Washington.  As voters, we should be mighty touchy about any of those efforts and reluctant to vote for people who do not share our sensitivity about the importance of the Constitution and our rights as citizens.

The second issue I would suggest is economic growth.  We will never really get out of this recession (that feels depressingly like the 1930s) unless we place a top priority on getting the economy growing.  We cannot solve our budget deficit and federal debt problems without economic growth.  People forget that the few years that we had a balanced budget in the 1990s did not come by government action.  Congress and President were in fact surprised by the surpluses.  They came about because the economy grew more strongly than expected.  We should support those legislators who act like they understand that economic growth creates jobs and that economic growth is created by private initiative.  We should support those legislators who consistently vote to remove barriers to business creation and innovation and defeat those who do not.  Those barriers include higher taxes and increasing government involvement in business decisions and operations.

All of this will take work on our part.  We cannot expect to have legislators who work for what is right and wise unless we do our work to find and support those who do.  There are many of them in the House of Representatives and in the Senate today.  We need more of them.

I believe that people eventually get the government that they deserve, and I yet believe that we deserve better than we have and that the time has come to get better.

Of Individual Freedom and the United States Senate

The first lawsuit has been filed.  There will likely be others.  When President Obama, in an action more redolent of hubris than homage to the Constitution, gave recess appointments to four individuals to lead government agencies, even though the Senate was not in recess, he initiated a constitutional crisis that is only beginning to unfold.

Three of these illegal appointments were to the National Labor Relations Board (NLRB).  The NLRB has been pushing a new requirement that all businesses put up posters, designed by the NLRB, encouraging workers to form a union. Businessmen have objected.  Only about 20% of American workers have chosen to form or join unions, which frustrates the Obama Administration, because it relies heavily upon unions for political support and funding.  Without those three appointees the NLRB does not have a quorum to finish its work on this new requirement.  Pretending that it now has a legal quorum, the NLRB resumed action on the rule, and businessmen filed suit, complaining that President Obama did not just break the law; he is trying to break the Constitution.  That is to say, this is not about the Senate; it is about the rights of American citizens, in this case the right to be free from imposed unionization.

Administration advocates would like to trivialize this crisis as a mere political dispute between the President and Republican Senators, yet another partisan spat.  That would be a superficial view, and it would be wrong.  Besides that fact that so far only one Democrat in the Senate has concurred with the President’s assertion that he rather than the Senate decides when the Senate is in recess, the core of the matter affects you and me far more than it affects the Senate. 

We must remember and never forget that the Senate (and the other branches of the United States government) was created by the Constitution to be an instrument for defending the rights of the individuals who make up “We the People.”  The Founders divided the power of the government into three coequal branches specifically so that they could block each other from taking unilateral action.  When the Senate asserted its authority against action of the President, it did so to preserve our freedom, in this case our freedom from being governed by people who are not accountable to the citizens.  During the 1787 debate on ratification of the Constitution Pennsylvanian Samuel Ryan described it this way:

Mr. [John] Adams’s sine qua non of a good government is three balancing powers, whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community.  (Samuel Bryan, “A Most Daring Attempt to Establish a Despotic Aristocracy”, in The Debate on the Constitution: Part One, p.55)

After all, we do not live in a monarchy where the king appoints his ministers to impose their will on the king’s subjects.  Our ancestors fought a war to get away from monarchy or they fled from lands where lords, ladies, kings, dictators, and other tyrants governed.  The Constitution, first and foremost, was designed to preserve our hard-won freedom and protect us from arbitrary rule.

The Declaration of Independence cited numerous objections against exercises of despotic power by the British king.  Consider these two, relevant to this whole question of whether President Obama, or any American President, should be allowed to appoint whomever he wants as judges or other government leaders without Senate consent:

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. 

Under the Constitution, people with the power of government were either to be elected or appointed with the consent of people who were elected.  The President can nominate, but he must wait for the Senate to approve the nomination.  That can be inconvenient to those appointed—I had to wait several months before the Senate confirmed my nomination as an executive officer—but it is very convenient for the preservation of freedom.

After President Obama’s unconstitutional appointments his Justice Department—which reports directly to him—rendered its opinion that the boss was right.  The core argument supporting its unsurprising (albeit late) conclusion is that the Senate should not be allowed to block what the President wants to do.  Of course, in our system of government, that is the Senate’s job, insisting that no one be given power to make laws and issue edicts without its consent.  That is not a part of the Constitution that our freedom can allow the President to skip.  

Of Presidential Czars and Constitutional Crises

In this age of crisis, one after another, it would not be surprising if you did not notice that the United States has entered into a constitutional crisis, brought on by recent political moves of President Obama.  The resolution of the crisis will affect the balance of power and authorities in our government, which balance was created by our Founders to protect the freedom of the people.

That balance has worked very well for some 200 years, although elsewhere I have noted that American children no longer seem to use a phrase that was common when I was a child.  In those days not so very long ago a child would commonly defy the intimidation or bullying of another by retorting, “This is a free country.”  Our freedom has been eroding.  It is in serious danger yet again.

Let us pause a moment to reflect upon our written Constitution.  It is a miraculous document, created by people who had only a few years before risked their lives, their fortunes, and their sacred honor to throw off monarchy and tyranny and create a nation where the rights of the individual were not only respected but guarded.  One of the first acts under the Constitution was to add to it a Bill of Rights, as if the Founders wanted to underline that the Constitution was all about personal liberty and preserving it.  Each and every item in the Bill of Rights, our first ten amendments to the Constitution, is a further limitation on the power of government over the rights of the individual.

Americans of various religious faiths, including those who disavow the existence of God, have over the last two centuries recognized the inspired nature and deep wisdom of the Constitution.  Many see and acknowledge even the hand of God directly manifested in its inspiration and promotion (see Doctrine and Covenants 101:80).

The Constitution is based upon the dread, born of painful experience, of entrusting men and women with the power of government over the rest of us.  It takes little historical research to find endless examples of how that power has been abused in nearly all times and places of the world.  Yet anarchy is no less a curse, one with which our Founders were also acquainted.

To balance and counter the two dangers, of tyranny and anarchy, the Founders relied upon a system of government that divided power.  No one would have a monopoly or even a predominance of power.   To begin with, the power of government overall would be strictly limited (and the Bill of Rights limited it even more), all but essential government powers remaining with the citizenry.  Then government power was divided between State and Federal authorities.  The power of the Federal government was further divided between three separate and equal branches of government.

The Founders did not believe in efficient government.  Rather, they believed that an inefficient government was needed as an efficient means of preserving the rights of the citizens.  While dividing authority among three branches, it was intended that neither branch could operate without the eventual cooperation of the others.  As had been seen in the English battles between king and parliament, tyranny and oppression resulted when either branch was able to rule without the consent of the other.

The United States has similarly suffered when weakness of president or congress allowed the other branch of government to operate without adequate check or balance.  The weakness of President Andrew Johnson allowed the tyranny of carpetbaggers with Congressional approval to oppress the people of the broken South following the Civil War, promoting poverty and racial hatred that lasted there for a hundred years.  The tyranny of the Franklin Roosevelt administration turned a deep recession into a Depression that lasted for a decade, disappointing people all around the world in the value of democracy and encouraging the dictators in Italy, Japan, Germany, and the Soviet Union who brought us World War II.

The first two years of the Obama Administration witnessed another period of weakened Congressional power, with a Congress all too ready to do the bidding of the President.  A willing Congress passed on to the executive branch control over the healthcare system, the financial system, and added trillions of dollars to government debt, only narrowly refusing to give bureaucrats authority to control the carbon dioxide that all humans exhale.

In the elections of 2010 the electorate voted to restore the balance by electing a congress that would object to the excesses of the executive branch.  That is precisely what the new members of Congress, with uneven success, have been trying to do over the past year.

President Obama is getting frustrated with the situation.  With the new year he has announced that he is going to try to govern without the Congress.  At a speech in the wealthy Cleveland suburb of Shaker Heights, President Obama said the following, “when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them.”  Then to emphasize that he means what he says, he announced the appointment of Richard Cordray, the former Attorney General of Ohio, who was defeated in the last election, to be a new federal financial consumer czar, without Senate confirmation.  The Senate has refused to confirm Cordray, but President Obama plans to install him in office anyway.

The appointment confirmation process was one of the protections of the Constitution to limit the power of the President.  The Constitution carefully and explicitly divided the power to give government authority to unelected officials, placing with the President the ability to nominate but requiring that Senate approval be gained before the nominee could take office.  As I can testify from personal experience, it is a frustrating process.  The Founders must have assumed that the Senate would from time to time refuse to consent to some nominees, in which case the President could not proceed, the authority of the government would not be extended to that man or woman.

The Founders were also practical people.  They knew that there would be times when government posts needed to be filled when the Senate was not in session.  So the Constitution allows the President to make temporary appointments without Senate confirmation, but only when the Senate is in recess.  This practical element of the Constitution was not intended to get around the normal procedure requiring in effect President and Senate to agree before giving powers of government to unelected officials unaccountable to the people whom they would govern.

The problem for President Obama is that the Senate has refused to approve the nomination, but they also refuse to go into a recess.  What to do?  President Obama’s solution is to declare on his own that the Senate is in recess and appoint Cordray anyway. 

Hence, our constitutional crisis.  Can the President give governmental power over the people to anyone that he wants without Senate consent?  The Constitution says no, and the President says yes.  Normally, we would all take comfort in the reassurance that the courts will enforce the Constitution, but court decisions of recent decades have shaken confidence.  This presidential act of hubris is surely headed for the courts.  If the justices fail to do their duty, then the powers of unelected federal bureaucrats (unaccountable to people or Congress) will grow, and individual liberty will be significantly eroded.  For now, I am pinning my hopes on the judicial branch rising to the emergency.

Of Politicians' Words and Deeds

A neighbor friend once asked me during election season how to tell the difference among the candidates. She pointed out that it was difficult from their messages to find enough difference on which to base a judgment. I cannot recall exactly what I told her, but if asked again today, this is how I would like to answer.

It is true that in the course of many political campaigns it is hard to tell from what candidates say who would serve better in office. With the candidates competing for the same office seeking the votes of the same electorate, a certain sameness can creep into their message, particularly if principles do not play a significant role in the campaign or in the mind of one or more of the candidates.

Far more important than what politicians say, however, is what they do—and where available, a record of what they have done. Many candidates for public office have served in another public office before. Most candidates for Senate were once a congressman, a governor, a mayor. Viable candidates for President have always had a history of prior service in public office, usually a fairly long history. Check into this history and trust it.

I do not know of any President whose service departed from the pattern of his prior service in other offices. I know of many whose campaign rhetoric did, but once in office they acted as they did before. While he talked a different game on the campaign trail, President Clinton served very much in the style of Governor Clinton. President George Bush has not acted very differently from Texas Governor Bush.

That brings us to the 2008 presidential election. Both major candidates have served in prior office. Both are Senators, Senator McCain having served for several terms. I have no expectation that a President McCain would act differently from Senator McCain.

Senator Obama’s record is much shorter. Four years ago he was a rather undistinguished member of the Illinois state legislature. Now he is a freshman Senator. Although he has not accomplished much while in office, he does have a voting record in the Senate. That brief record is even more eloquent than the Senator himself. While Senator Obama’s speeches may be rich in vacuous platitudes—however well delivered—his record is very clear and deep with meaning. It is the record of an ordinary partisan Democrat.

That record shows a strong adherence to the doctrine that problems need to be solved by government, by government rules, regulations, and funding. It is a record that is deeply mistrustful of individual choice and initiative. It trusts markets the most when they are the more guided by government and is fearful of them the freer that they are from governmental control.

Senator Obama’s record is short, but it is consistent and clear. You can trust it as a reliable testament of how a President Obama would act in office.