President bound by Constitution?
My letter to the WSJ was PUBLISHED on 11/3/07:
The Wall Street Journal had an article on Wednesday discussing whether the President of the United States should obey unconstitutional laws, concluding that he shouldn't, and that congressional restrictions on intelligence and wiretapping of foreigners was an intrusion into executive authority.
The article is here:
The Surveillance Law That Matters
Robert F Turner, Wall Street Journal, 10/24/07
I note, however, the subtitle of the article:
"The president is bound by the Constitution, not the whims of Congress."
This almost made me laugh out loud when thinking about how little regard this president (or this Congress) seems to have for the constitution.
The ultimate example is Bush's signing statement when he signed the McCain-Feingold Incumbent Protection Act also known as the McCain-Feingold Censorship and Anti-Citizenwhip Act (thanks to Newt Gingrich for that one).
Quoting the last several paragraphs of that document...the paper which I believe more than anything defines the Bush presidency as a failure:
However, the bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections.
I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment.
I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.
As a policy matter, I would have preferred a bill that included a provision to protect union members and shareholders from involuntary political activities undertaken by their leadership.
Individuals have a right not to have their money spent in support of candidates or causes with which they disagree, and those rights should be better protected by law. I hope that in the future the Congress and I can work together to remedy this defect of the current financing structure.
This legislation is the culmination of more than 6 years of debate among a vast array of legislators, citizens, and groups. Accordingly, it does not represent the full ideals of any one point of view.
But it does represent progress in this often-contentious area of public policy debate. Taken as a whole, this bill improves the current system of financing for Federal campaigns, and therefore I have signed it into law.
GEORGE W. BUSH
THE WHITE HOUSE,
March 27, 2002.
In other words, according to the President, abrogating the constitution is OK as long as it was done with "debate" or as long as legislators and citizens agreed on it.
This is the most egregious dereliction of duty that a president could undertake, at least in terms of domestic policy. The oath of office, "to the best of my Ability, preserve, protect and defend the Constitution of the United States" is not a random, meaningless set of words. They represent the foundation of the job itself, indeed of our entire government. Short of intentionally letting a foreign enemy defeat us in war, there is nothing more important for the executive branch to do properly than to protect and defend the constitution, especially in the last 75 years of the Supreme Court's erroneous rulings allowing Congress to regulate everything under the sun in the name of "the general welfare" or "interestate commerce".
How many of you are aware of the 1942 Supreme Court case Wickard v Filburn where a farmer was not allowed to grow wheat for his family's personal use in excess of a government-imposed quota for maximum production, even though his family was poor and being able to make their own bread rather than having to buy it made a real difference to them? It took until the 1995 Lopez case for the Court to make even a marginal attempt to limit the range of Congress' abuse of the Commerce Clause.
Did you know that the Supreme Court ruled in Raich v. Ashcroft that Angel Raich, described by the Washington Post as "a mother of two from Oakland suffering from scoliosis, a brain tumor, chronic nausea and other ailments" could not grow marijuana solely for her own use to relieve pain because since she would grow it herself she would not be buying it in the open market, and therefore was effecting interstate commerce...never mind that the same federal government classifies marijuana as a Schedule I drug, meaning it is absolutely prohibited and has no medical use, (whereas cocaine and opium are Schedule II, meaning they may be available by prescription and have some accepted medical use) so any open market for marijuana is inherently illegal.
I bring these cases up to underscore how critical it is for our president to protect and defend the constitution when no other branch of government is doing so.
For a president not to recognize potential unconstitutionality where there is a minor technicality is one thing. But to say twice in a signing statement that what he's signing is unconstitutional is not just embarrassing for our nation...it's exceptionally dangerous.
So, when an article describes the president as being "bound by the constitution", I want to laugh but a more suitable reaction would be to cry for the erosion of our nation's fundamental principles and the insult to the genius of our founders.
Here's the short version which I sent to the Wall Street Journal.
While it’s true that Congress, with the erroneous approval of the Supreme Court, regulates things that it does not have authority to regulate, the idea that the president (or at least this president) is bound by the Constitution is laughable.
There is a reason that presidents (and other federal elected officials) take an oath to “protect and defend the Constitution.” Just because Congress and the Court abandon that oath does not mean the president should also. To the contrary, the president must now be especially vigilant in defending our nation’s fundamental principles.
When the president twice mentioned unconstitutional aspects of the McCain-Feingold act while he was in the process of signing it, he knowingly committed dereliction of duty, of the most important duty other than his role as commander in chief. So while the president should be bound by the Constitution, he clearly isn’t.
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