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Screwtape’s Little Sermon
April 13, 2013 | 0 comments
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Screwtape Gets Real
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Screwtape Talks Tactics
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James Buchanan, 1919-2013
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Waiting for the Gods
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The Law & Economy Spectator
Rex Quondam, Rex Futurus
A new constitution for a 21st century empire.
OVER THE LAST 250 YEARS there have been four American constitutions, each giving us a very different form of government. The first constitution was that of the pre-Revolution Crown colonies, under which royal governors dominated the elected assemblies. These were swept aside by the American Revolution, and (after the interregnum of the Articles of Confederation) the Framers, at their convention in the summer of 1787, produced the second constitution, one of congressional government, with power centered in the Senate and House of Representatives. The seeds of the third constitution were found in the second constitution and emerged over the Republic’s first 50 years, as the president became popularly elected and his office emerged in the form of the modern executive: commanding, decisive, and possessing all the authority of the only person elected by the nation at large.
With Obama, we have now entered into a fourth constitution, one of strong presidential government, in which the president has slipped off many of the constraints of the third constitution’s separation of powers. He makes and unmakes laws without the consent of Congress and spends billions to reward his friends. His power exceeds that of any American ruler since the Revolution. He is rex quondam, rex futurus—the once and future king.
The election next month is a choice between two very different ideas about the role of the state, between free markets and crony capitalism, between fiscal prudence and financial profligacy, between a forceful foreign policy and a fainéant one. It is also a referendum on which constitution is to govern us, and what we decide will determine what kind of country we will have for many decades to come.
The President’s Legislative Powers
ARTICLE I, SECTION 1 OF THE CONSTITUTION bars presidential law-making by specifying that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” Nevertheless, Congress has quietly acquiesced to the expansion of presidential power through a succession of laws which, drafted in the broadest terms, delegate the details of their implementation to the executive branch, which can be seen as a grant of legislative powers to the president.
The Dodd-Frank financial regulation statute provides a striking example of this abdication. The act created two new federal agencies, the Financial Stability Oversight Council and the Consumer Financial Protection Bureau, each with enormous and ill-defined discretion over a large sector of the American economy. The CFPB is empowered to proscribe “unfair, deceptive or abusive” consumer loans and “predatory” lending, open-ended standards that place little discernible limits on the regulators. The CFPB is also immunized from Congress’s power of the purse, because the agency has a claim to more than $400 million from the Federal Reserve each year and because Congress is prohibited from reviewing that budget. Just what these agencies will do depends on who is appointed to run them, and that decision lies with the president.
The controversy over the CFPB was heightened by the manner in which it got off the ground. The agency could not begin its work until its director was appointed. This would have required Senate confirmation, however, and Republicans filibustered the appointment. To get around this, Obama made a “recess” appointment of Richard Cordray in January 2012, at a time when the Senate, according to its rules, was not in recess. Instead, it was in a “pro forma” session, which means that senators appear periodically for a few minutes to bang the gavel. Before 2012, this tactic had worked for five years to prevent two administrations from making an appointment without Senate confirmation, and Cordray’s recess appointment was therefore a precedent-setting expansion of executive power.
The courts have been complicit in the grant of presidential legislative powers, by stripping Article I, Section 1 of any discernible content. The section should prevent Congress from delegating legislative powers to the president, but this non-delegation doctrine was last heard when the Supreme Court struck down the National Recovery Act in 1935. It is unlikely to fetter future presidents.
The President’s Non-Reviewable Veto Power
THE CONSTITUTION gives the president the power to veto any bill, subject to a two-thirds override by both houses of Congress. In recent years, however, presidents have enjoyed an expanded, non-reviewable veto power. They might simply decide not to enforce a law.
Presidents have frequently issued signing statements in which, without vetoing a bill, they declare that they do not consider themselves bound by some of its provisions. In the past, however, they have always asserted a constitutional basis for doing so, and this was not a shocking exercise of executive power. Were Congress to pass a law abridging the right to practice one’s religion, for example, no one would expect the president to enforce it while waiting for the Supreme Court to strike it down.
Obama has now expanded the non-reviewable veto power in two ways. First, he has announced that he won’t defend laws passed by prior Congresses. In 1996, Congress enacted the Defense of Marriage Act, which defines marriage, for federal purposes, as being between a man and a woman. The act was passed by large majorities in both houses of Congress and signed into law by Bill Clinton. In 2011 Obama’s Department of Justice announced that it regarded the law as unconstitutional and would no longer defend it in court. Because DOMA is the subject of ongoing lawsuits, this comes down to an effort to veto a law which Obama lacks the votes in Congress to repeal.
Second, Obama has asserted the right not to enforce laws that are constitutionally unobjectionable, simply as a matter of prosecutorial discretion. Congress refused to pass Obama’s DREAM Act, which would have given conditional permanent residency to some illegal immigrants, and so he issued an executive order that they not be deported. The new program of formalized “Deferred Action for Childhood Arrivals” could allow an estimated 1. 7 million young undocumented immigrants to live and work in the United States
Most recently, the administration released a policy directive that allows states to receive a waiver for the work requirements that were at the heart of the 1996 welfare reform law, passed after a lengthy debate over how to get people off welfare. The act’s authors foresaw the possibility that subsequent administrations might seek to gut its workfare requirements, and they therefore made them non-waivable. Administration officials say only waivers that improve outcomes will be approved, and Utah’s GOP governor has defended his state’s request for one. That said, whatever one thinks of waivers, they mark a remarkable assertion of presidential power. The non-reviewable veto trenched on both the spirit and the letter of the major legislative initiative of the Clinton presidency.
The executive obviously possesses a degree of discretion in the manner in which it enforces laws, but if this permits a president to disregard them in the face of congressional opposition, one might reasonably ask whether any limits can be set to the nonreviewable veto power. The president’s assertion that he can decide not to enforce a properly enacted and constitutionally unassailable statute violates both the vesting power of Article I, Section 1, and the presidential veto power of Article I, Section 7. (Why veto a bill, and risk an override by Congress, if a president can simply decide not to enforce it?) It also violates Article II, Section 3 of the Constitution, which enjoins the president to “take Care that the Laws be faithfully executed,” to say nothing of the separation of powers itself. As such, the non-reviewable veto is constitutionally suspect, but if this is a breach, it is one without a legal remedy, since there is no sanction for failing to enforce a law short of an exceedingly improbable impeachment. Only a political remedy exists, in the requirement of a referendum on the administration in a popular election.
About the Author
F.H. Buckley is Foundation Professor at the George Mason University School of Law.
aware| 10.25.12 @ 6:21AM
"The election next month is a choice between two very different ideas about the role of the state..."
Now that is a hoot! The only "difference" is who runs the organized theft/murder fraud, not the fraud itself.
Is it possible for this "(s)election" farce to get any more farcical than when neocons pretend to fear the State, a "fear" that always subsides when they win?
drudge ette obama| 10.25.12 @ 6:33AM
Silly comment, Aware. Some states should be feared more than others, don't you agree? Or have you a relativism argument to make here?
aware| 10.25.12 @ 6:45AM
You obviously don't understand the pathology of the State. It is organized for violence period. All forms of the State are at differing points on the same road to Leviathan.
Or maybe you can provide an example of one that got smaller over time?
drudge ette obama| 10.25.12 @ 6:56AM
May I please change my comment to state that your comment is not silly, it is more psychologically twisted than silly. I apologize for the erroneous description.
By the way, are there Burger Kings on the road to Leviathan?
Von Mises Jr| 10.25.12 @ 8:20AM
aware is about as aware as a teenage boy who just found out about his penis.
Quartermaster| 10.25.12 @ 12:28PM
Perhaps you bunch of idiots would like to actually point out where Aware is wrong. Instead you act just like the left does. mainly, that's because you are left of center yourself, reflecting teh shift that has taken place over the last 80 years.
The GOP is about where the Dems were CA 1935. The Dems are juust Commies these days.
Zeppo| 10.25.12 @ 12:56PM
aware is right. Among our political elites, there is no fundamental disagreement with the assumption of a managerial, redistributive state that rules over us and "fixes" our society. The Dems push the limits and the GOP consolidates the results. But yes, I will still vote for Tweedledee over Tweedledum.
aware| 10.25.12 @ 4:40PM
I always love the intellectual arguments of a neocon, Jr. And always some sexual connotations(usually sodomite related) to boot.
Change your handle, Mises is rolling in his grave.
drudge ette obama| 10.25.12 @ 6:30AM
If we had an educated electorate, perhaps an explanation, such as you have given, would curb Obama's abusive and unconstitutional power reach, but we don't have an educated electorate.
And we don't have a press corps that sees fit to disseminate the truth about what Obama and his crew have done. So we are screwed, to put it bluntly.
Had President Bush issued an executive order that he would not enforce the Community Reinvestment Act or issued an executive order that nonprofits would lose their 501(c)(3) status if they provided any form of birth control or abortion, even if by subcontracted services, then there would be outrage, led by the front page press.
This power grabbing technique works both ways. Let's hope that it doesn't become a habit - but absolute power has a way of corrupting absolutely..
Jack in Wi| 10.25.12 @ 6:40AM
This is really laughable. Obama is only carrying on the tradition started with Lincoln who shredded the Constitution and replaced it with a strong Central government. After the Civil war small government made a comback to some degree. Then it has been downhill as Theodore Roosevelt, Woodrow Wilson, FDR, Truman, Kennedy Johnson, Nixon, The Bush's, Clinton, and Obama have all grown the Presidency into an imperial institution with few limits on it's power. There is no basic difference betwen Romney and Obama on most issues. There foreign policy is the same as G. W. Bush. Romney is running as the more competent guy who will carry on most of the same policies. I am voting for Romney just because I can't stand the sight of Obama anymore. I also have hope that someone new might finally get something right. It is a faint hope, but he can't be any worse then Obama.
aware| 10.25.12 @ 6:48AM
To vote for Romney is to accept the plate full of crap the Shadow Elite has determined for you. And it will encourage even worse crap to come.
Jack in Wi| 10.25.12 @ 7:59AM
To throw a guy out of office after one term is a very good thing to do. It might become a habit. Obama has been a disaster. Wisconsin is a battle ground state. I want Obama gone and have some hope that Romney will be better. If he is as bad as Obama he will be thrown out too. Besides If Obama is re-elected he will make this country into Hugo Chavez's Venezula. We will never get rid of the Chicago Machine. Obama has to go now.
aware| 10.25.12 @ 4:37PM
Your hope will be futile. Nothing can stop what is coming.
Herald7| 10.29.12 @ 11:22PM
But God, humanist.
Tom Kyba| 10.25.12 @ 12:46PM
Guess I'd better get that landing pad ready for the black helicopter. Sheesh!
aware| 10.25.12 @ 4:35PM
I'd say you should just keep thinking what you're suppose to, conformist. And when they tell you to go to the Super Dome so they can "care" for you, go.
Appleby| 10.25.12 @ 7:13AM
The world is now laden with blind eyed robots with things jammed in their ears and the volume jacked up to Eleven, chanting "Not Listening Not Listening Not Listening" until the fire trucks, trains and SUVs of life run them down or they fall on the subway tracks and are crushed. We are shouting warnings at people who have neither desire nor intention when it comes to stepping out of the way. This is a generation who thinks if it yells "I DON'T BELIEVE IN GRAVITY!" that they can step off a 90 story building and they will not die. I am filled with morbid curiosity as to what will happen when Mom and Dad have retired and these Nimrods are entrusted with the keys. I have the impression that one EMP would turn them into an ant hill without a Queen. Bunker down. It's about to get dangerous out there.
drudge ette obama| 10.25.12 @ 7:51AM
Appleby, the answer to your question is the same answer to the same question to that the 1960s clear-thinkers asked. Ex-hippies, anti-establishment-types have some power and clear-thinkers also have power. It's already dangerous out there. Perhaps there will be a number of them that do step off that building to stem the tide.
MelvinNC| 10.25.12 @ 7:29AM
All comments are all well and good, and I must admit have had made similar observations in one way or another.
So, with everything being as it may, and all of conventional thought on this matter what we we do as a Nation, as a people, and as a society to correct this current tack we are on, or do we capitulate, and erase over two hundred years of American exceptionalism and return back to our European roots style of governance?
I think deep in the fringes of our minds we know what is going to eventually happen with this Nation, short term wise, but readily do not admit this to others.
"Veni, vidi, vici" The question is, who is the, the Julius Caesar that will conquer us?
drudge ette obama| 10.25.12 @ 7:54AM
I think it will be technology that ultimately controls, so et tu, Brutus will be whomever controls technology - whether a consortium of individuals or several people at the helms of their companies/government agencies.
People will have to turn off technology to be free. The next 100 years will be very interesting and I can't begin to even contemplate what it will be like.
MelvinNC| 10.25.12 @ 2:27PM
Bingo sister, the misses says the very same thing.
Dave Williams| 10.25.12 @ 2:10PM
Ohblahblah IS that very guy, and is to be feared on that account alone.
Bill Hussein O'Stalin| 10.25.12 @ 8:16AM
F.H. Buckley makes a good case against the Congress as well as the President.
Rivers of money have poured through D.C. drowning honest people who have attempted to speak out against it.
It is a sliding scale of moral relativism where promises made are impossible to keep, but the politicians keep the lies and the promises coming.
Obama is the perfect culture pop culture President appearing with Jay Leno and on The View while mouth meaningless pop culture statements.
In the meantime behind the scenes, he takes a sledge hammer to the U.S. Constitution. But he's not alone. This has been a long term process aided and abetted by the Supreme Court and the U.S. Congress.
It appears to be accelerating.
Von Mises Jr| 10.25.12 @ 8:32AM
This is one of the finest articles I have read in a long time, Mr. Buckley. I am blue in the face trying to explain this to anyone who will listen.
But in actuality, it is even worse. Kings strived to be benevolent rulers caring for their people.
In 1215, King John signed the Magna Charta rather than have a sword sever his neck. Charles I was tried for treason and executed. Later, his son James II fled to France during the Glorious Revolution. A century later, Louis the XVI was beheaded mostly for the sins of his grandfather and father.
This rise of Obama is not similar to the Reign of Kings. It is more like the rise of a dictator such as Lenin, Hitler, Mao and Castro. This is why we should be much more concerned and vigilant in ridding the nation of this tyrant and despot. This is what leads to totalitarianism.
MelvinNC| 10.25.12 @ 9:36AM
You are correct. Even this Country is not immune.
Al Adab| 10.25.12 @ 9:33AM
"When any government becomes destructive of those ends, it is the right of the people to alter or abolish it..."
Petronius| 10.25.12 @ 10:18AM
We will soon descend into battle of all against all with the final scene similar to the opening scene of the bone banging simians in 2001. But this time, none will remain to play or hear The Blue Danube. Such is the destiny of this government of the Trash, by the Trash, and for the Trash.
Houdini| 10.25.12 @ 10:53AM
Time to take ou the trash.
Houdini| 10.25.12 @ 10:54AM
Sorry...out.
Appleby| 10.25.12 @ 10:55AM
And if you want an answer to the query posed by the sneering science majors "Who needs Classical Liberal Education anyway?" Here it is, writ large. The "Millenials" can't solve the problems because they can't even recognize the problems..it's all right there in "Brave New World" -- but the generation of permanent infants that Brave New World has spawned cannot read it, and if they can read it, they cannot understand it...because in a world without a common grounding in literature, arts, music, history and rhetoric, it is impossible TO understand it. Which of course was what Mustapha Mond et al. was aiming for all along, wasn't it?
Thom| 10.25.12 @ 5:34PM
If Hitler and Stalin were on the ballot today, one would win regardless of their reputations simply because those are the choices offered. Between the two a rational case can be made for each depending on what you what from "government" but the bulk of the Democrat Party would vote for the one that killed several times what the other one did of his own people and spread misery far and wide while the other is "infamous" through 65 years of a one sided conversation.
Thom| 10.25.12 @ 5:35PM
In the 1932 parliamentarian election in Germany, the Communists, the Socialists and the Nazis got about 72% of the vote. What these collectives have in common make academic nitwit's heads explode when you point out their end games are essentially the same yet when given a choice of those three the German people favored the "fascist" or Crony Capitalist solution by a bit. Pretty much "fascism" will be voted into power because it rewards unequal output while the other "socialisms" have to lie their way into power where a Dumbmocracy is operating on the promise of egalitarianism. This is all reflective of the baser Human nature in mankind that Republics were instituted to resist. The Founders, being well read and educated men as opposed to what passes for that today pondered how to not make their sacrifices in vain thus what Franklin spoke to at the end of the Constitutional Convention in 1787 was not unique to just his thinking. Mankind has a terrible record of self-rule and we are living but one example of what history has shown countless times to be "an enduring weakness of democracies' lack of accountability". When there is no accountability in government there is no rule of law.
Thom| 10.25.12 @ 5:35PM
As I remember, an academic nitwit recently wrote that the war over moral relativism was over (and won) and Conservatives could move on .... Wrong, at the center of all our social and fiscal problems you will find an institutionalized dept of government who's function in life is to make sure enumerated words in the Constitution don't mean anything at all ..... Sooner or later the two polar opposites in our society are going to dispense with elections with ballots and the real meaning of Democracy is going to present itself in all the ugly detail sane people have known it for going back thousands of years. I'll be happy to not be around when the "king" returns.
Pecos Pete| 10.25.12 @ 8:13PM
Thom: Excellent comments.
Dodgy Geezer| 10.25.12 @ 6:12PM
The Scots got away from England in the 1300s, and it took England 400 years to get them back, by a mixture of economic pressure and clever marriage alliances.
I don't think the US is quite as destitute as Scotland was with the failure of the Darien project in 1700. Yet. But it's starting to go that way. Give it another 100 years or so of state spending, and it'll be ready to be reconnected.
You will know that it's close to that time when English princesses are sent over to marry into the American political classes......
Timely Renewed | 10.25.12 @ 7:39PM
As Professor Buckley points out, we have so abandoned the original constitutional framework that we now live under essentially a new constitution based on the imperial presidency, aided and abetted by an imperial judiciary. Short of revolution (Jefferson's solution) our only chance of restoring something of the original Constitution is to resort to the ultimate power the Framer gave us - constitutional amendments restating and re-affirming the Constitution's original limits. However, to accomplish this, we must first reform the amendment process so that constitutional amendments can be initiated without having to go through either a Congress dependent on the current system or the untried and unworkable mechanism of a new constitutional convention. See http://www.are-we-the-people.org.