The Powers of a King

Conservative Review points out that yesterday was supposed to be the end of the DACA program, except that the courts have so far said that the President isn't allowed to end a program created purely by the action of the previous President.
Yet thanks to a political system that has crowned district judges the kings of our society, the very underpinnings of the self-governing nation established in the Declaration of Independence have now been abandoned. We have district judges who can unilaterally make denizens of aliens – the power of a king, according to Alexander Hamilton in Federalist #69.
The relevant section of Federalist 69 is about why a president is preferable to a king.
The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.
I've highlighted three areas in which we've gone astray.

1) The Iran Deal was a treaty governing nuclear weapons that was effected without any input from the legislature -- the Corker-Cardin bill set up a means for Congress to express disapproval, but Democrats in the Senate filibustered a vote, so no vote was ever taken on approval or disapproval. The 2/3rds majority consent, required by the language of the Constitution, wasn't seriously considered as a standard the Obama administration would attempt to meet.

2) The 'denizens of aliens' was the intent of DACA. The courts are merely affirming Obama's right to rule as king, such that his successor by democratic election may not undo his fiat.

3) At this point most of the regulations on commerce originate in the executive. At some point the legislature consented to the delegation of its authority to the executive, and now most things affecting commerce that have the force of law are created undemocratically by the executive bureaucracy.

Serious problems, all, and it's just one paragraph of one of the Federalist papers.


Oh, and as for the power of declaring war, Obama's actions in Libya never once passed any sort of 'by your leave' by Congress.


Ymarsakar said...

So not even the executive pen can (temporarily) return to health what the Left has destroyed.

Civil War 2 is much like Civil War 1 in the US.

Even if Lincoln wanted to prevent the mistake of Buchanan from shattering the territories and state loyalties to the union, he could not reverse time as the strategy had already been effected in the Utah War of 1857.

Ymarsakar said...

The traitors in the US are far safer than the terrorists and foreign enemies outside the USA.

After all, the moment anyone in the US points out a traitor, they get ignored or all kinds of Constitutional blocks are utilized to protect the treason. Later on, people forget about, and then the traitor activates the plan. By that time, it is too late to do anything, as the gates are already open.

“A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear.”

It's why I didn't jump to the conclusion that Edward Snowden was a traitor, even though HRC, the intel networks, and the usual talking heads had the same narrative.

E Hines said...

The Iran deal never was a treaty, and so Senate ratification has never been needed. That's also why Trump can walk away from it all on his own, without Senate concurrence.

The "courts" thinking that an DHS Memorandum can't be undone by an Executive Order are a couple of trial courts. We'll see what the Supreme Court does when the matter comes to them. I'm not as unconfident as others.

The regulations on interstate commerce are just the Executive Branch taking advantage of the destruction of the Commerce Clause by the Supreme Court all those years ago, including an FDR-stacked Supreme Court Wickard decision.

Eric Hines

Grim said...

You keep asserting that the Iran Deal was not a treaty, but I can't understand what the word "treaty" might entail if it doesn't capture:

1) A formal agreement between the United States and other nations,

2) That governs existential questions such as nuclear weapons.

The fact that everyone in DC went along with the pretense that it wasn't a treaty doesn't mean that, in fact, it wasn't. It just means that DC wanted to play pretend because it was more convenient than applying the plain-language standard of the Constitution.

E Hines said...

I can't understand what the word "treaty" might entail if it doesn't capture:....

1) It's not a formal agreement between the United States and other nations. It's an Executive Agreement between the President and the Iranian MFWIC. That other nations came along for the ride is nice for them, but not relevant to the agreement's status.

2) That it entails existential questions is simply a non sequitur. There's nothing in the Constitutional definition of a treaty that requires such a thing, and many of our actual treaties do contain it--for instance, covering matters of trade, of extradition, and so on. And peace treaties, which can be existential, and articles of surrender, which most assuredly are.

(3)) Two is irrelevant, too, because of 1).

Eric Hines

E Hines said...

*do not contain it*

I really need to get one of those keyboards that types what I mean instead of the keystrokes my fingers make.

Eric Hines

Grim said...

It's an Executive Agreement between the President and the Iranian MFWIC[.]

Except it isn't that, because it was ratified by Iran's parliament as a treaty, not just an executive agreement.

I included (2) because I can see that there might be "agreements between the United States and a foreign power" that don't rise to the level of a treaty. But if anything does, it'll be an agreement between the United States and the foreign power that touches existential issues. If the President can issue 'executive agreements' that other nations feel must be ratified as treaties, but that do not trigger the Article II requirement for Senate advice and consent, then the President has obtained a kingly power indeed. He did not do so by constitutional means.

E Hines said...

It is an Executive Agreement because that's how the President executed it. That the other party to the Agreement chose to give it the status of formal treaty in their legal system is wholly irrelevant to the status of the Agreement in our legal system. Or are you suggesting that other nations' laws should have effect inside the United States? I doubt that's your intent.

That agreements involving existential matters ought to be done by treaty is nice, but it's not what the supreme Law of the Land requires. For good or ill, the Executive Agreement was done entirely by constitutional means. It's part of the kingly power that the authors of the Constitution agonized so mightily about. It's a small part of why the compromise that produced the Constitution explicitly rejected John Jay's desire to reduce the States to the status of counties to the central government, the better to carry out Federal laws.

If the President is in a position today to so abuse his Executive authorities, it's because of two things. One is that the courts--that other coequal branch of our Federal government--have both chosen to subordinate themselves to the Executive through its studied deference doctrines and to deviate from the text of the Constitution, presuming everywhere else to push their Living Constitution ideology and so to "reinterpret" that text in light of individual judges' views of current social needs.

The other is that the Congress has shirked its own responsibilities and to extent subordinated itself to the Executive by delegating too much regulation-writing authority to Executive Branch facilities.

Eric Hines

Grim said...

I'm not aware of any black-letter Constitutional provision for 'executive agreements' between nations that aren't treaties.

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

There's no similar Power granted to enact 'executive agreements' with foreign powers. Read with the supremacy clause, which makes treaties part of the supreme law of the land, and it's even stronger. That part in Article VI says that treaties are made "under the Authority of the United States," not of the President; and it mentions nothing about other sorts of executive agreements with foreign powers.

E Hines said...

And that brings us back to the fact that the nuclear weapons agreement with Iran isn't a treaty.

His authority to do Executive Agreements--a Branch-wide authority--is inherent in The executive Power shall be vested in a President of the United States of America. It's also a long-standing precedent.

There's the Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America is unconstitutional and FDR's Destroyers for Bases Agreement as a couple of examples.

Eric Hines