Presidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.

Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents. So it shouldn’t be hard to envision some pretty undesirable consequences that might flow from presidential power that increasingly approaches the absolute.

Our television news and newspapers don’t seem terribly interested in this story, despite scraping its surface with reports on the many “czars” Obama has appointed or lectures on the importance of renewing, or only marginally amending, the PATRIOT Act. And Congress seems, if possible, even less interested. That’s not so surprising, given that we’ve replaced the three branches of government with the two parties, so that at any given time roughly half the members of Congress take as their leader a president who is theoretically supposed to execute the will of Congress. And the other half usually obey their party’s “leaders” in Congress, whose primary interest is in electing one of their own as the next president. Both parties continue to value presidential power itself either for its uses in the present, or for when their candidate is elected. Everyone wants to inherit the imperial presidency, not constrain it.

Under these circumstances, bills to create commissions investigating presidential abuses, to place a judicial check on claims of “state secrets,” limit the use of presidential signing statements, or to allow more than eight members of Congress to be given “security” briefings by the executive branch prove not to be priorities for either party.

These days, the old-fashioned idea of checking executive abuses of existing laws through the issuance of subpoenas or by impeachment is, in Washington, widely considered a scandalous proposition. Congress impeached a judge this year who had groped his employees, but Jay Bybee, who signed secret memos purporting to legalize aggressive war and torture, and who now holds a lifetime seat on the Ninth Circuit Court of Appeals, is protected from such a step by his recent membership in the executive branch (and the displeasure Fox News would express toward his impeachment).

In April, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, asked Bybee to testify, and the judge refused, just as many of his former colleagues in the Bush administration had in 2007 and 2008. Leahy may be unwilling to follow up by issuing a subpoena that even the new Department of Justice might refuse to enforce. The current department, for instance, allowed the White House Counsel to negotiate partial compliance with a House Judiciary Committee subpoena by former presidential advisor Karl Rove. And if Leahy is like most members of Congress, he will not even consider the option of using the Capitol Police to enforce a subpoena himself – something that no committee has done in 75 years.

All Power to the President

Any quick survey of the powers the presidency now claims would have to include the power to make laws, the power to make wars, the power to spend money, the power to make treaties, the power to grant immunity for crimes, the power to operate in secrecy, the power to spy without warrants, the power to detain without charge, and the power to torture.

Laws are still made by Congress, but they can be rewritten via signing statements; that is, statements announcing a president’s intention to violate particular sections of the very bill he is signing into law. Neither Congress nor President Obama has thrown out all of Bush’s extensive signing statements that did indeed alter laws. In fact, Obama has announced that his subordinates will review his predecessor’s signing statements only as the need arises.

This policy might please those imagining that the Obama administration will always make the right decision about whether to maintain or reject a Bush-made amendment to a law, but it does nothing to strip the presidency of the power to use the mechanism of the signing statement to re-make or amend or alter new laws. As it happens, Obama has already published his own law-making signing statements.

Presidents now also routinely determine national policy through executive orders and, in doing so, run the country out of the White House rather than through departments headed by officials approved by Congress. They also increasingly dictate a legislative agenda to Congress – and both members of Congress and members of the public generally accept without comment or opposition that inversion of our constitutional system. And then there are the secret memos.

In those secret memos, Bush’s lawyers in the Department of Justice dutifully “legalized” numerous illegal acts, including aggressive war and torture. Despite years of public back-and-forth between the White House and the Congress over the question of whether to ban torture, any act of complicity in torture was already a felony in the U.S. code under the Anti-Torture Act, which enforced the Convention Against Torture signed by President Ronald Reagan. However, the secret Justice Department memos were taken as the final word in legality, no matter what the law said.

Obama has directed the Justice Department not to prosecute those at the highest levels responsible for producing those memos, though he has permitted consideration – whether seriously intended or not – of the possibility of prosecuting a handful of low-ranking staffers who strayed beyond the illegal policies outlined in the memos. Not only does this bestow immunity on the most prominent criminals, reversing the approach – starting at the top – that the U.S. took at the Nuremburg war crimes trials after World War II, but it has the potential to create a terrifying precedent for the future. If a president can use his justice department to legalize a crime simply by asking a lawyer to write a memo, then who can doubt that a president has something approaching absolute power?

Presidents, not Congress, do indeed make wars now, whether or not they consult Jay Bybee’s memo on the subject. They make wars without congressional declarations of war, using instead vague bills to maintain a pretense of congressional involvement – and then they don’t even comply with the terms outlined in those authorizations. Illegal (as well as unconstitutional) as they may be, these wars can be expanded into apparently permanent occupations that include the construction of gigantic military bases from which additional wars may be launched. In the process, mercenaries often take the place of soldiers, and as “private contractors” they then operate even further from congressional oversight or the law.

To invade Iraq, President Bush spent money not appropriated for that purpose. He also gave himself the power to transfer money into “black budgets” beyond the purview of all but a few members of Congress, and so use it for secret tasks signed off on by his officials. Of course, massive secret budgets under the control of the president are nothing new, though they’ve grown through the years. Neither are they constitutional or sustainable.

On October 6th, the leaders of the two parties met with President Obama and, by Senate Majority Leader Harry Reid’s account, let him know that he could end, decrease, maintain, or escalate the war in Afghanistan and Pakistan as he saw fit. The Senate had voted the previous week not to call on war commander Stanley McChrystal for public testimony about that ongoing war until after the president determines his war policy, which of course means a war policy for all of us. Two days later, in a surprising flicker of dissent, House Appropriations Committee Chairman David Obey released a statement suggesting that, contrary to everything he’d said for years, he recognizes that Congress has the power to choose not to fund those wars and thereby to end them.

As his presidency was winding down, George W. Bush concluded an unofficial treaty (though it was called a Status of Forces Agreement) with the government of U.S.-occupied Iraq for three more years of war there without feeling the slightest need for it to be ratified by the Senate. Ever since, the U.S. military has actually violated the terms of that document, while its key commanders continued to publicly state their intention to remain in Iraq beyond the end of 2011, a clear violation of the agreement. In the meantime, this White House has used the treaty as cover for an ongoing illegal occupation of Iraq with, at this point, 120,000 U.S. troops and tens of thousands of private contractors.

Is Congress Broken?

When many feared that Bush might pardon his subordinates for crimes he had himself authorized, the consensus among members of Congress and scholars was that he could, in fact, do such a thing. In some ways what both Bush and Obama have actually done is worse. With a big assist from Congress in the form of bills like the Military Commissions Act and the FISA Amendments Act, they have worked to grant immunity for crimes without even naming the criminals or revealing what they have done. Obama’s Department of Justice is now arguing, appealing, or re-appealing in various court cases to keep secret the abuses of government officials and corporations involved in torture and warrantless spying. Recently, the Justice Department even argued that, when it comes to denying information to a court or the public, telecommunication corporations must be considered a part of the executive branch of the federal government, and earlier this year the administration threatened the British government with an end to intelligence sharing if it revealed evidence of torture.

President Obama announced that he will only claim the right to hide information from a court on the grounds that important “state secrets” are involved after careful review by lawyers at the Department of Justice. This may be an improvement over the Bush years – not exactly a hard standard to reach – but notably this decision still cedes not an ounce of power to any branch other than the executive, even as Obama’s lawyers make radical “state secrets” claims in attempts to block entire court cases, rather than over particular pieces of information.

While this president is ceding modest amounts of territory claimed by the previous one, he is ceding nothing when it comes to presidential power itself. For example, the president said he would release White House visitor logs (as the Bush administration had not), just not those already recorded, including the ones that held records of the visits of deal-making health insurance executives, nor any future logs that he thinks would endanger “national security.” That offers change of a sort, however modest, but leaves it entirely in the president’s hands to decide which logs to release.

This administration has indeed released some of the secret memos that Bush’s Department of Justice used to justify torture and never shared with the public, but only when compelled by courts. The Justice Department has, in fact, fought fiercely against their release and has redacted significant sections of them before making them public.

Bush claimed for the presidency the power to detain people without charge or legal process – and then used it. Obama stood in front of the U.S. Constitution in the National Archives in Washington and asserted the same power, in violation of the right of habeas corpus found in that torn and tattered document. Director of Central Intelligence Leon Panetta and presidential advisor David Axelrod have similarly made clear that the president still claims the power to engage in “harsh interrogation techniques” but chooses not to use it. Torture in this way has been transformed from a crime into a policy choice, with the intended message apparently being that we can stop torture temporarily by choosing to elect Democrats. This is perilous territory.

Perhaps presidents simply cannot be expected to give back powers gained by the executive branch, but shouldn’t we expect Congress to work to take them back on our behalf? When Alberto Gonzales resigned as attorney general, he did so because a rapidly growing list of members of Congress signed onto a one-sentence bill directing the House Judiciary Committee to investigate possible grounds for his impeachment. Such an approach toward Judge Jay Bybee could begin to restore the power of Congress to assert itself in other areas as well, while pressuring the Justice Department to enforce the law, and potentially making public a great deal of information through the subpoenas involved in any impeachment hearing, which does not permit claims of “executive privilege.” Information subpoenaed in an impeachment hearing must be produced, or the failure to produce it can become another impeachable offense.

Many of us probably consider our current president a much nicer guy than our local congressional representative. That doesn’t change the fact that influencing a president, or even a senator, via grassroots pressure is infinitely more difficult than influencing a member of the House of Representatives.

This is not a new discovery. After all, isn’t this, in part, why the House was given the power of the purse and the power of impeachment? Being closer to the ground, that body is, by its nature, going to be more amenable to democratic pressure and direction. If we want once again to have a real hand in making our nation’s policies, our best shot – admittedly still a distinctly uphill course – is to focus on the person who represents us in the House.

Unfortunately, we have to compel each of them to do something they have come to collectively fear: taking back the power originally bestowed on them and not on behalf of their party, but of their branch of government, of the Constitution to which they’ve sworn an oath, and of the proper sovereigns of this nation: we the people. Otherwise the chief legacy of the Obama years will, like those of his immediate predecessors, be the slide from republic into empire and the continuing growth of an imperial presidency.

David Swanson served as press secretary for Kucinich for President in 2004, runs the AfterDowningStreet.org website, and is the creator of Impeachbybee.org. His new book is Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press). Visit his website. He is now touring the country for the book. You can find out when the tour will be in your town by clicking here.

Copyright © 2009 David Swanson

While even sympathetic observers will admit that the current 10th amendment revival is a reaction to the new Democratic president, resolution sponsors are making special efforts to point out the constitutional, not partisan, intention of their efforts. Says Republican Michigan state Rep. Paul Opsommer, “Some Democrats feel it is an attack on Obama until I explain I also introduced it last year… This is about the rights of the states and the people, not anything to do with Republicans or Democrats.” Primary sponsor of the pending Kentucky state sovereignty resolution, Rep. John Will Stacy, is a Democrat.

And they are making no-bones about their dissatisfaction with aspects of the Bush legacy. Reports the Charleston City Paper of SC bill author, Rep. Michael Pitts, “Pitts notes he first designed his bill in response to mandates that the state provide education and emergency medical treatment to illegal aliens. And it goes beyond that to other concerns, like the threat of stricter gun control laws under the new Democratic administration, Pitts says, as well as Bush-era policies, like No Child Left Behind and the Patriot Act.” While a number of state resolutions mention the Patriot Act, virtually all of them include No Child Left Behind in their critique of overbearing federal power.

That the rise in state sovereignty challenges has been mostly ignored by the national news media isn’t surprising. That it has been ignored by the mainstream conservative movement isn’t surprising either, and speaks volumes about the “official” Right’s tolerance for populist uprisings not of their own making. Heritage and National Review equate red-meat conservatism with Sarah Palin, who has already shown her willingness to be whatever her Republican handlers wish. His own man, Sanford continues to make headlines in spite of—not because of—GOP officials, and when speculating about future Republican leadership, the SC governor’s name is always listed after that of Palin, Bobby Jindal or Mitt Romney for a reason.

And the states’ rights movement isn’t mentioned at all for the same reason. With the lone exception of Glenn Beck, conservative talk radio has ignored this new Obama-resistance—an opposition with a constitutional framework that could bear teeth if state legislators felt they had enough support—instead concentrating on opposing the president in the abstract. Talk radio bitches all day about Democrats Obama, Nancy Pelosi and Harry Reid, but offers no serious avenues of opposition outside of their hope that Palin, Jindal or Romney might save us by running for president in 2012. Nationally syndicated talk hosts, like their liberal, alleged enemies, concentrate on the Washington, DC, power structure, because they, too, view it as the place where all power resides. And states rights’ aren’t on the mainstream conservative movement’s map because individual state efforts are considered too weak, not worth the effort—and don’t include the mainstream conservative movement.

CLICK HERE TO READ THE FULL ARTICLE

Does the “liberal” Obama respect the Constitution more than the “conservative” Bush?  From the Contra Costa Times:

After months of battling with the Bush administration, California may be close to getting permission from the federal government to set its own standards for tailpipe emissions from cars and trucks.

President-elect Barack Obama is expected to grant the state a waiver to impose the tough new standards after he takes office in January, reversing a decision by the Bush administration that infuriated environmentalists.

“Obama has said very clearly he would permit California to move forward and enforce its greenhouse gas standards for cars, so we expect that the Bush administration’s policies will be reversed in short order,” said Frank O’Donnell, executive director of the environmental group Clean Air Watch.

… If Obama approves the waiver, the implications will reach far beyond California.

Eighteen other states already have adopted or are in the process of adopting California’s standards. The waiver would clear the way for them to impose the tougher standards as well and would force auto manufacturers to produce more fuel-efficient vehicles nationwide.

… EPA Administrator Stephen Johnson announced last December that he had decided against issuing the waiver because California did not have “compelling and extraordinary conditions” to set its own standards.

The article continues, discussing “California’s” desire to control “greenhouse gas” emissions, and Bush’s unwillingness to allow them to adopt stricter standards than the federal ones.  I find it interesting that Obama appears to be exhibiting a greater appreciation for states rights than Bush did in this case. Appearances can be deceiving.

We all know the 10th amendment, but just for discussion, I’ll paste it here:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Pollution, and the control thereof, is nowhere mentioned in the Constitution; therefore, by the 10th amendment, the power to regulate pollution is “reserved to the States respectively, or to the people”. Constitutionally, the states may have a right to regulate pollution, that would depend on the constitutions of the respective states, and the will of the people. In any case pollution regulation does not belong to the over-reaching federal government.

Neither Bush nor Obama demonstrates a belief in states rights in this case.  Bush showed his colors by enforcing federal standards against state wishes.  Obama will do the same, but with one exception – states can have laws which are more totalitarian than the federal ones. Imagine what would happen if the State of Idaho, for example, wanted to adopt a standard which was “lower” than the federal standards.  Do you think Obama, Bush, or almost anyone in Washington would be willing to go along with that?

The truth is that virtually nobody in Washington believes in the 10th amendment anymore.  They feel they can, and therefore rightfully should, regulate pretty much anything they feel like regulating.

Greg Heller [send him email] is an Evangelical Christian who holds a Libertarian political perspective.  Visit his website, The Holy Cause.

Today in the same breath someone, to me, attacked Bush for violating the Constitution, and not supporting Social Security enough.

Apart from the fact that the “raiding” of Social Security actually makes the S.S. Trust Fund more solvent and is a good investment (as it is guaranteed safe by the Constitution, and earns interest), and apart from the fact that Congress controls that more than Bush (and that it has continued under the Democrats) … there’s also the fact that Social Security is an unconstitutional violation of our rights, as per the Tenth Amendment.

Feel free to complain about violations of the Constitution. But don’t do so while propping up OTHER violations of the Constitution. It makes you look like you don’t care about the rule of law.

And don’t argue with me about the Tenth Amendment.

No one who understands the Tenth Amendment can honestly say it allows for Social Security, unless from the position of arguing that we are not under the rule of law, but the rule of men, and I reject that premise out of hand.

Pudge works for Slashdot writing computer programs in Perl, writes and records music, works with the local Republican party, eats steak, follows Boston sports, and has a life.  See more of his writings at http://pudge.net/glob/

From the article:

Despite having no experience in education, Neil Bush is the founder of a Texas-based company called Ignite! Learning, which, since 1999 has peddled strange little devices called “Curriculums on Wheels” (COWs) to schools state and nationwide. Rather than anything bovine, COWs actually resemble bright plastic droids or office chairs gone terribly wrong. Described as “computer/projectors,” it’s not really clear what they do or how they work, and a cursory look at the company’s website does not help. (Apparently it involves swivel action.) Regardless, there are COWs for different subjects: the Math COW, the Science COW (“the ultimate classroom sidekick!”) and the Social Studies COW.

But here’s the kicker – Neil gets (surprise, surprise) federal funding for his COWs! It’s just another miracle provided to you and I by the No Child Left Behind Act.

Well, of course, there are some people who aren’t happy with this, and another acronym is speaking out against the possible impropriety:

Recently, a three-month investigation by the Citizens for Responsibility and Ethics in Washington (CREW) revealed that schools are spending hundreds of thousands of dollars, including No Child Left Behind funds, on Neil Bush’s COWs. “It is astonishing that taxpayer dollars are being spent on unproven educational products to the financial benefit of the president’s brother,” CREW’s executive director, Melanie Sloan, said in a press release.

There’s definitely a problem here.  But, where I see both Liliana and Melanie missing the mark is that they seem to focus primarily on the symptoms rather than the cause. Melanie’s statement is representative of this; “…It is astonishing that taxpayer dollars are being spent on unproven educational products…”

While it is a potential waste to spend money on unproven educational products, this isn’t the biggest problem. The real issue is that the federal government should not be taking your money and spending it on local concerns – at all.

First of all, there’s nothing in the Constitution which authorizes the federal government to engage in such spending. Readers of this site are probably quite familiar with the fact that the Constitution was written under the principle of “positive grant.” What this means is that the federal government can exercise only those powers which are specifically given to it in the Constitution. Everything else is left to “the States, respectively, or to the people.”

Constitutional arguments aside, there’s also a principle that needs to be followed – the idea that centralized bureaucracies are always loaded with corruption. Remember, it’s not the abuse of power that we should be most concerned with, but rather, the power to abuse. The ability to spend vast sums of money will inevitably lead to more and more corruption in government.

As long as this kind of spending exists, there will always – always – be corruption through kickbacks, contracts with friends and family, and the like. Unless we accept this reality, we’ll always end up with the short end of the stick when trying to improve education in this country.

Whether it’s Bush and his brother getting favored status and federal funding, or a future president and their family getting rich from your income, doesn’t really matter. As long as the power exists, it’s liable to be abused. And that’s the sad truth.