The View From 1776

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Liberals on both sides of the political aisle have adjudged President Bush a uniquely power-hungry chief executive bent on destroying our Constitution and creating a dictatorship.  Evidently they haven’t reviewed the records of some of their favorite Presidents – Abraham Lincoln, Teddy Roosevelt, Woodrow Wilson, Franklin Roosevelt, and Harry Truman.

A somewhat extreme liberal-Progressive-socialist indictment of president George W. Bush was Joe Conason’s column in The New York Observer

“Bush’s abuse of power deserves impeachment
12.23.05 - Recklessly and audaciously, George W. Bush is driving the nation whose laws he swore to uphold into a constitutional crisis. He has claimed the powers of a medieval monarch and defied the other two branches of government to deny him. Eventually, despite his party’s monopoly of power, he may force the nation to choose between his continuing degradation of basic national values and the terrible remedy of impeachment.”

The volume of such rhetoric is rising, because the short-term extension of the Patriot Act ends in about five weeks.  Left-wingers hope to see it rescinded altogether.  Congressional moderates on both sides of the aisle have legitimate concerns that the Patriot Act may go unnecessarily far, threatening the Bill of Rights more than it protects against terrorists. 

Such concerns are well founded historically.  The legitimate aim is proper balance, based on careful analysis, not on partisan politics.  Every major war, beginning with the Civil War, has engendered expansion of scope in the Federal government and greater concentration of powers that threaten individual rights.  Citizens, unified by enemy threat, tolerate regulations and controls that would provoke revolt in peacetime.

Liberals argue both that there is no real war, that the Iraq invasion was illegitimate, if not unconstitutional, and that, in any case, the Bush administration has overplayed its hand, creating despotic abuses of power.

Neither charge holds up under scrutiny.  First, there was clearly an observance of Constitutional requirement that Congress is alone authorized to declare war, which it did.  Second, however much it distresses civil libertarians, nothing authorized by the Bush administration in prosecution of the war in Iraq or against terrorists elsewhere, is unprecedented or definitively outside the scope of the President’s constitutional authority.

With regard to legitimacy of the war in Iraq, the Wikipedia states:  “Although some of them have changed their opinion in the last two years, in 1998, many key Democrats including President Bill Clinton, Tom Daschle and Richard A. “Dick” Gephardt were supporting the idea of destroying Iraq’s weapons of mass destruction programs, using force if necessary. In February of 1998, former President Clinton remarked “ There is no more clear example of this threat than Saddam Hussein’s Iraq. His regime threatens the safety of his people, the stability of his region and the security of all the rest of us.” He goes on to say “Some day, some way, I guarantee you, he’ll use the arsenal.” and concludes “Let there be no doubt, we are prepared to act.” [3]

“.... On October 31, 1998 US President Bill Clinton signed into law the Iraq Liberation Act which was passed by the US Congress by large bipartisan margins declaring: “It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.” [5]
“In early December of 1998, the British and US governments launched airstrikes against Iraq, codenamed Operation Desert Fox.
“....On October 11, 2002, the United States Congress passed the “Authorization for Use of Military Force Against Iraq Resolution of 2002”, giving U.S. President George W. Bush the authority to attack Iraq if Saddam Hussein did not give up his Weapons of Mass Destruction (WMDs).”

With regard to the second main charge by liberals, the scope of Presidential authority under the Constitution’s Article II, Section 2 has been a subject of heated contention from the nation’s earliest days. 

Section 2 states simply: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;” Within that broad grant of authority lie myriad implied powers.  Proving that any one of them is unconstitutional has been a near impossible job since 1789.

The ACLU’s catalog of President Bush’s alleged abuses includes secretly spying on American citizens and wire-tapping phone conversations without a warrant; secretly searching homes and library records; kidnapping people off the street without charging them, secretly flying them to other countries, and torturing them; holding people in Guantanamo for four years without charging them with a crime; and enacting policies that allow torture.

This list, even if one were to accept the allegations as factual, is pretty mild stuff compared to unilateral actions by Presidents Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, and Harry Truman.

Most actions alarming to defenders of the Constitution have been taken under executive orders, a process that allows a President to legislate without Congress.  As James Madison noted in the Federalist Papers, Montesquieu had warned that uniting legislative and executive powers in the same office amounts to despotism.

Before the beginning of the Civil War in 1861, presidential executive orders were issued only 143 times in 72 years, mostly for declaration of special holidays and other innocuous purposes.  More than 13,000 numbered executive orders have been issued since then.

The greatest number of executive orders were issued by Franklin Roosevelt (3,723; 29% of all orders); Woodrow Wilson (1,791; 14%); Teddy Roosevelt (1,006; 8%); and Harry Truman (905; 7%).  After Truman, the highest number of executive orders issued was 452 by Dwight Eisenhower.

In the early months of the Civil War, President Lincoln ran the war entirely via executive orders, without a constitutionally-mandated declaration of war by Congress.  Without Congress’s authorization, for example, he ordered 72,000 Federal troops into battle with Confederate armies, blockaded southern ports, and ordered the Treasury to spend money to build 19 warships and add 41,000 men to the Federal armed forces. 

Note that an executive order to the Treasury to spend Federal money is directly in violation of the Constitution’s Article I, Section 9, one clause of which states: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law [i.e., pursuant to acts of Congress].”

In addition, via executive orders without Congressional legislation, Lincoln suspended habeas corpus, arrested without warrants people who were suspected of ‘disloyal’ practices, proclaimed martial law, seized private property, suppressed publication of newspapers, prohibited use of the Post Office by persons or organizations deemed ‘treasonable,’ emancipated slaves, and issued orders for reconstructing the Confederate states.

Supreme Court Justice Benjamin Curtis said that Lincoln had established ‘military despotism,’ and abolition leader Wendell Phillips said that Lincoln was an ‘unlimited despot.’ Lord Bryce later was to write that Lincoln exercised more single-handed political power than any Englishman since Oliver Cromwell’s Protectorate.

Under Teddy Roosevelt the process of issuing executive orders, without prior Congressional authorization, went into overdrive.  A partial list: establishing Civil War veterans’ disability pensions, at a cost of more than $20 million per year, without Article I, Section 9 authorization by Congress; in 1905, after the Senate refused to ratify a treaty with Santo Domingo, Teddy issued an order declaring the treaty effective and acted under it; he made a secret treaty with Japan not to interfere with their military protectorate over Korea without the Senate’s knowledge, let alone its approval. 

Also by executive agreement without prior approval of the Senate, TR established the 1907 policy to limit Japanese immigration; backed the Open Door policy in China; recognized Japan’s special interests in China; acquired the Panama Canal (again contravening Article I, Section 9 regarding appropriation of public funds); dispatched the U. S. Navy’s Great White fleet on a round-the-world provocative display of American military power; and sent military forces into Caribbean countries, using them in some cases to establish puppet governments under our control.

After World War I, the Senate Special Committee on National Emergencies concluded that President Wilson had exercised “dictatorial powers.”

President Wilson was the first president to declare a national emergency and then to use that as the authority for a long string of other executive orders.  He was the first to create Federal departments by executive order, among them the Food Administration, the Grain Administration, the War Trade Board, and the Committee on Public Information (i.e., propaganda to bolster support for the war effort). 

His Fourteen Points as a basis for negotiating the treaty to end World War I was without any input or agreement from Congress, as was his dispatching American troops to Siberia after the war.

At Wilson’s request as we prepared to enter into World War I, Congress passed the 1917 Espionage Act, which made it a crime to promote or cause insubordination in the military forces or to obstruct recruitment and enlistment in the armed forces.  This act, parenthetically, was a major impetus in establishment of the ACLU to oppose any restrictions on anarchist and socialist speech or actions.  The Supreme Court, in the 1919 case of Schenck v. United States, upheld the act.  Ironically the majority opinion was delivered by liberal icon Justice Oliver Wendell Holmes, Jr.  It was the occasion of Holmes’s famous “clear and present danger” test on curtailment of free speech, in which he wrote, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.”

Franklin Roosevelt in his 1933 first inaugural speech, invoking Wilson’s precedent, equated the Depression to a national emergency on the level of invasion by a foreign enemy.  As one newspaper headline put it the next day, “Roosevelt Declares for Dictatorship if Necessary.”

FDR’s first official action was an order, without Congress’s approval, closing all banks pending Federal review.  His claimed authority was the 1917 Trading With The Enemy Act, which, however, granted no authority without a Congressionally-declared war (which came only after Pearl Harbor, December 7, 1941) and permitted no regulation of transactions of citizens within the United States.  By executive order, he granted diplomatic recognition to the Soviet Union in 1933 and, in 1940, instituted Lend Lease transferring Navy destroyers to Great Britain, over strong Congressional opposition to our involvement in the war with Germany.  In other cases before World War II, FDR seized private businesses to settle labor disputes (one of them, North American Aviation).

After our entry into World War II, a notorious FDR executive order forcibly removed 112,000 American citizens of Japanese descent from their homes and relocated them in concentration camps.  His claimed authority was the powers of a wartime Commander-in-Chief, the same powers President Bush cites to wiretap conversations of international terrorists.

In his first two terms, FDR created at least 101 new Federal agencies, many without Congress’s authorization.  These agencies controlled almost every aspect of what had been private business and agriculture.  By 1936 there were more than five hundred Federal agencies that had offices in every state in the union.  These quasi-judicial agencies became vehicles for diluting Congressional power and for stripping the states of many of their former powers under the 9th and 10th Amendments of the Bill of Rights.  They represented delegation of legislative power by Congress, in that these agencies were free to make whatever regulations they deemed appropriate, without prior Congressional approval.  In addition, they were authorized to enforce and to adjudicate disputes under their own regulations.  In short, they combined the powers of the separate executive, legislative, and judicial branches, which the Constitution had separated to prevent dangerous concentration of power.  Many of these agencies fell under the direct control of the President, rather than of Congress.

As had his cousin Teddy Roosevelt, FDR funded a number of his executive department agencies unconstitutionally, without Congress’s spending authorization.  This was accomplished by having the Federally-funded Reconstruction Finance Corporation borrow money in the public markets and use it to purchase stock in the agencies, which were organized as private corporations.

Some of the greatest concentrations of power in the hands of the Federal government were authorized by Congress, but they represented fulfillment of FDR’s campaign promise in 1932 to institute Soviet and Italian Fascist-style state-planning.  Going off the gold standard for our monetary system and outlawing the gold-payment clauses in private and public contracts and for all Federal currency was designed deliberately to induce price inflation as a theoretical way to boost the economy (a policy that Mussolini predicted correctly would actually depress business activity). 

The National Recovery Administration (NRA) was modeled directly on Mussolini’s Fascist State Corporatism: the Federal government designated industry groups and appointed councils of labor union, industry, and Federal executive department leaders to establish production quotas, wage rates, and selling prices; in effect, NRA transformed free-market private enterprise into European-style government regulated cartels.  This, of course, was illegal under existing anti-trust laws.  A tailor in New Jersey was sent to prison for charging 35 cents to press a pair of pants, when the NRA code called for 40 cents.

The Agricultural Adjustment Agency (AAA) fixed prices and quotas for farm production, even jailing a farmer who grew food for his family’s use without specific regulatory authorization.

President Harry Truman continued in the pattern laid out by FDR.  In the last year of the war and afterwards, to settle labor disputes, he seized control of manufacturing plants, textile mills, steel mills, slaughterhouses, coal mines, refineries, and railroads.  The Supreme Court observed that his May 1946 seizure of the bituminous coal mines was for the purpose of permitting the Secretary of the Interior to impose a contract favorable to the Miners Union.

In short, whatever President Bush has done was either authorized by Congress or is well within the bounds of presidential powers as wartime commander-in-chief established by his liberal iconic predecessors.

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