The Green Papers Commentary
 

"OMG! THE SKY IS FALLING!!"
Keeping a Cool Head re: President
Obama's recent 'Executive Action'

Wednesday, November 26, 2014

by RICHARD E. BERG-ANDERSSON
TheGreenPapers.com Staff

On the evening of Thursday 20 November 2014, President Barack Obama strode up to a microphone mounted atop a lectern embossed with the Presidential Seal in the East Room of the White House and announced an 'Executive Action'- in the absence of any Immigration Reform bill that might have otherwise been passed by Congress and sent to his desk for his signature into Law- protecting an estimated 5 million undocumented aliens from being deported (as they risked having done to them had the President not so acted). "Mass amnesty would be unfair", the President explained. "Mass deportation would be both impossible and contrary to our character. What I'm describing is accountability: a common sense, middle ground approach".

The immediate, and intense, reaction from at least some Republicans to this was itself quite 'over the top'. Congressman Bob Goodlatte (R-Virginia)- for one- opined that the President was "going rogue, doubling-down and driving full-speed towards a constitutional crisis" and "threaten[ing] to unravel our Government's checks and balances and imperil[ing] individual Liberty"; Congressman Lamar Smith (R-Texas) went so far as to say, of Obama, "I believe he is actually declaring war on the American People and Our Democracy".

Senator Ted Cruz (R-Texas), as might well be expected by now, really 'took the cake' this time round, however, by taking to the floor of the United States Senate and riffing on a speech before the Roman Senate by the legendary orator Cicero, one allowing Cruz to declaim that Obama was "openly desirous to destroy the Constitution and this Republic" (pretty much the same kind of nonsense that, all too often, fills my own TheGreenPapers.com e-mail Inbox via Press Releases from [and/or links to the websites of] various and sundry 'Tea Party' groups).

The response of Speaker of the U.S. House of Representatives John Boehner (R-Ohio) was- on the other hand- typical of the more measured, less strident retorts to Obama's 'Executive Action': "The President has taken actions", Boehner noted at one point, "that he himself has said are those of a 'king' or an 'emperor'- and not an American President". In another venue, Boehner reiterated this theme, claiming that "the President says 'he is not a king', 'he is not an emperor'-- but he sure is acting like one".

But let us- at the start- take a good, hard look at the very notion of a President of the United States as 'king' and, perhaps, even an 'emperor'.

First of all, the President of the United States- as I myself have, more than once, said on this very website- is, in fact, a 'king'- albeit an elected one: the powers and duties of the President- as specifically outlined in Section 2 of Article II of the Federal Constitution itself- were also among the prerogatives of the British Crown in the late 18th Century, at the time the Constitutional Convention was meeting in Philadelphia. After all: English, become British, monarchy was that which the Framers of America's fundamental document- most of whom, at least, were raised on both the King James (that is: 'Authorised' [by the Crown]) version of the Holy Bible and Blackstone's Commentaries on English [that is: the 'Common'] Law- themselves most well knew.

It can fairly be said, then, that they simply adapted the English/British constitutional monarchy (for that was what- by the time of King George III, who reigned from 1760 till 1820- it was, despite American Revolutionary 'Patriot's decrying him as both "despot" and "tyrant") to these Framers' own republican (which- while, yes, republican- were not, in fact, all that democratic [though they allowed for at least an element of same, most specifically within the manner and method of biennially electing the lower house of their new 'Congress of the United States']) principles in crafting the office we today know as that of the American Presidency. Thus, the President (again, America's own "elected king") was to be, among other things, "Commander-in-Chief of the Army and Navy"; he was to have the power to "grant reprieves and pardons for offenses against the United States...; make treaties...; nominate... [and] 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"; in the following Section of that same Article, he was permitted to "receive ambassadors and other public ministers" (presumably those from foreign countries).

However, the President- despite such an "elected kingship"- was to be reined in (at least somewhat: indeed, just how much would- soon enough- become a bone of much political contention between Federalist and [Jeffersonian] Republican, of which more below) by various and sundry "checks and balances" (primarily via the inherent legislative powers of Congress and the inherent judicial powers of the Federal courts): the treaties the President was authorized to "make" would, thereafter, have to be ratified by two-thirds of the Senators present before becoming effective; many of his "nominat[ions] and appoint[ments]"- certainly those to those offices specifically noted in my immediately preceding paragraph- could only become formalized "with the advice and consent of the Senate". He was required, in Section 3 of that same Article of the Constitution of the United States to "from time to time give to the Congress information of the State of the Union"- the very origin of the President's Annual Message to Congress in each session of same becoming known, colloquially, as his 'State of the Union' Message or Address (thus, although 'elected king', he still had to regularly report to Congress as to what he was doing- and going to do).

But none of the foregoing at all alters the notion that the President was intended- by those who drafted the Constitution of the United States- to function as the Nation's 'elected king (or queen, come the time Americans might- one day- choose a woman to be their President)': nevermind the fact that the formal, official title of this particular "monarch"- but ever to be a constitutional one- was 'President of the United States of America'.

Now, as for the President of the United States as 'emperor':

Earlier this very year, I wrote that the United States of America is not so much a country- that is: a Nation-State in the usual sense of the term- so much as it is the core of an 'Empire'. I then went on to note that the USofA has, in fact, been historically speaking- three successive such 'Empire's- in turn: 1. the American 'Empire' of "Manifest Destiny", a Federation (ultimately) stretching from "sea to shining sea" across a large swath of the North American continent: beginning in 1787; 2. the American 'Empire' of "Expansionism" (against which opponents of same, both within and without it, would cry "Imperialism")... [dating from] 1867 (the true beginning of this 2nd 'Empire'), the purchase of Alaska; and 3. the American 'Empire' of a "Great Power", eventually to become a "Superpower"... finally com[ing] to flower- in 1947.

[By the way, I leave to those who might want to examine (or even believe in) so-called 'Cyclic Theories of History' (to the point where the cycles themselves are of more or less equal length) the issue of whether or not this current, third, American 'Empire' should be looking out for the year 2027 as, perhaps, some kind of future watershed for the United States of America.]

I then further explained that [u]nlike the first two of its 'Empire's, this 3rd 'American Empire' is not an Imperium, in which the Federal Government of the United States of America has direct- at least, political- control over said Imperium's components; rather, the 3rd 'American Empire' is a Constellation: that is, a mere collection of allies and protectorates which, if only from time to time, can tell the "Emperor" (the President of the United States and his/her Administration) just where to "stick it" and- more or less (again, from time to time)- get away with it; but I also noted that these same allies and protectorates know (and, in many cases, have even come to expect) that the USofA will- again, more or less- "have their back" when the proverbial "excrement" first reaches the proverbial "air conditioner" (if you know what I mean!)

In addition: the President of the United States is, in yet another sense, an 'emperor'- that is, a 'king of kings': for the Governors of the States of the American Union are, themselves, 'elected king's (or 'elected queen's) of their respective States in the same manner as is the President just such an 'elected king' in relation to the Nation as a whole. Each Governor is 'chief of state' of a State (just as the President is 'chief of state' of the United States itself), each of whom happen- given the system of governance now enshrined (because at least some American States did not always so enshrine) in each of the respective Constitutions of the 50 American States, a concept of Separation of Powers (a concept I will also come back to below)- to act (as does the President) as his/her own 'political executive' (that is: 'prime minister' or 'premier').

If each Governor of a State is, functionally, an 'elected king' who is so empowered to act as his/her own 'premier' as well, then a President of the United States is, also functionally, an 'elected king of kings [that is: 'emperor']' who, likewise, is his own 'prime minister'!...

which makes perfect sense, given that- some paragraphs earlier in this very piece- I quoted myself noting that the 1st American 'Empire', the historical root of the 2nd and 3rd same, was that very Federation (ultimately) stretching from "sea to shining sea" across a large swath of the North American continent: that is, a federation of sovereign States each governed by their own 'elected king or queen' with the President, thereby, as effectively 'emperor' of this very federation.

Now, admittedly, the very title 'emperor' conjures up many a negative image in the American mind: whether it be one of a muscular, helmeted Caesar (his helmet adorned with a scarlet parade crest) in chain-mail armored tunic and wearing arm guards while bearing his "Spanish sword" as he rides on horseback leading his victorious legions in triumphal procession into the very heart of Rome or one of a cartoonish 'Emperor Ming' from 1930s "Flash Gordon" serial shorts (or, for that matter, something not all that unlike Darth Vader of Star Wars fame). Indeed, the word 'emperor' itself tends to also conjure up rather iconic notions of far more absolute power than does the word 'king'-- that of an "Evil Empire" as a veritable 'Goliath' defending itself against so many 'Davids with slingshots' so desperately fighting for Liberty, Rights and Freedom.

Yet the related term 'empire' need not be seen as so negative (at least among those who might live in its metropole: the peoples outside the metropole [yet still indirectly- where not directly- affected by the 'empire'] might well see things rather differently!). George Washington spoke of "not rest[ing] contented till I have explored the Western Country, and traversed those lines (or a great part of them) which have given bounds to a new Empire" and John Adams- after noting the (already by his time) traditional narrative of the coming of the Pilgrims and Puritans coming to his native New England "for conscience sake"- opined that "[p]erhaps this apparently trivial incident may transfer the great seat of Empire into America"; while Thomas Jefferson contemplated "add[ing] to the Empire of Liberty an extensive and fertile Country thereby converting dangerous enemies into valuable friends"-- thus all of Our Nation's first three Presidents spoke glowingly in terms of 'empire', yet none of these men seems to have, thereby, at all abandoned their respective republican principles (at least as they themselves, of course, each understood these [while- as will be touched upon later in this very piece- Washington was generally above Party, Adams would become a leader of the so-called 'Federalist's and Jefferson would become founder/leader of the '(old) Republican's, yet later declaim- at his own first Inaugural- that "[w]e have called by different names brethren of the same principle: we are all Republicans, we are all Federalists"]).

'Tis true that all of that which I have just described above is both merely cosmetic, as well as functional- indeed, primarily (or, at least, mostly) metaphoric in nature: a President of the United States only appears like unto an 'emperor' (thus: this is, again, 'cosmetic'); he operates very much like a 'king' (and this is, again, only 'functional'). In truth, then, the President is- constitutionally speaking, of course- not at all a king or an emperor in the sense in which these are yet most feared: however- and if only for the reasons described above- he (and this regardless of his Party and/or ideology) very often does- and, at times, even has to- appear as if he is acting like one!

Coming out of the generation of the Founding Fathers and Framers of the Constitution of the United States itself, there have been three basic threads of notions about how the three Branches of the Federal Government (and these could very well also be applied to the same Branches within State Government, by the way) are to interact, one with another, within that concept which is known as Separation of Powers (the political theory that- as much as might prove practicable [and it is not always so practicable!]- no Branch of Government [Legislative, Executive and Judicial] should ever trespass upon the powers and the prerogatives of another such Branch).

The question that has ever- throughout its History- plagued the American Constitutional System (State, as well as Federal [though far less attention seems to be paid, at least by the average American, to State-related issues in this regard: even though it is the Government of the State (and its Civil Divisions- Counties, Townships, Municipalities and the like- acting, for the most part, on the State's behalf) that has far more of a direct, and daily, effect on said average American than does the Federal Government]) is this: Who gets to decide when whomever- of whichever Branch of Government- has, in fact, overstepped their own lawful, constitutional authority?...

Put another way: in the 'game' of American Politics and Government, who is- in fact- the constitutional "umpire"?

Alexander Hamilton- among others of his own time, as well as long since- argued that it simply had to be the Judicial Branch that would have to become the constitutional "umpire" in this regard-- from the modern perspective, this is seen as so for two principal (as well as altogether practical) reasons:

  1. As the Legislative Branch of Government would make Law and the Executive Branch of Government would enforce Law, the Judicial Branch would be left to apply Law (to specific legal situations, as might be brought before the courts). In other words: whatever the Law might be- as hashed out between the respective chambers of a bicameral legislature, as well as between same and an executive empowered to (potentially) veto legislation (with the legislature further empowered to override any such veto by a supermajority)- it would be the courts that would have to, thereafter, determine whether John or Jane Doe broke the Law (in a criminal case) or if Joe Blow actually had a legal remedy (damages- or restitution and/or injunction) against John and/or Jane Doe (in a civil case); it would, therefore, be the courts that would have to also, at the same time, decide whether or not the Law, as so applied (potentially) against the Does (whether in a civil or criminal case) itself passed 'constitutional muster' (if not- that is, if Law itself violated the Constitution, the court would have to declare it null and void [no matter how big the quantity of votes for it in the legislature, no matter how popular it might have been amongst the People]).
  2. Whereas the Legislative Branch and that of the Executive could take up any issue- at any time- they might well choose (legislators can talk- at length, especially in the upper house of a legislature- about any policy option they each might wish and introduce any legislation they each might please [although this doesn't necessarily mean that such proposed legislation will actually be taken up on the floor, however: the majority of the legislators might outright table it (or a large enough minority of same might be able to block invocation of 'cloture', ending debate, which might then force the majority to withdraw the proposed legislation from consideration) or farm it out to a committee to die]; a President- or, for that matter, a Governor- can utilize that which Teddy Roosevelt called "the bully pulpit" to try and influence public opinion and, thereby, press for his/her own policy options and initiatives as he/she might see fit [although this doesn't mean that the Executive Branch's priorities will necessarily become Law, however]); but judges must ever wait for what is known as "a live 'case' or 'controversy'" that is clearly within their respective court's purview and jurisdiction to come before them: despite many a howl to the contrary over the entire course of American History, the Judiciary does not have unfettered power to act upon any legal or constitutional issue its judges might wish to so act upon-- there is, after all, Procedure within Jurisprudence!

The underlying premises of the above two arguments- that 1. the Judiciary would be left to apply the Law as already had been hashed out between the Legislative and Executive Branches and 2. the Judiciary could only act when a live legal case or controversy might come before it (as opposed to the Legislative and Executive Branches pretty much "reaching out", more or less at will, for policy issues upon which to both opine and act)- became the basis for what came to be known as 'Judicial Review' which, in turn, became the linchpin of the constitutional philosophy of that which emerged- during George Washington's second term as President- as the Federalist Party (although Washington himself had no real use- nor stomach- for such political factions and, despite being adopted as one of their own by the Federalists [especially after his death in 1799], Washington truly belonged to no Party [although the Federalist Party did generally support most of what Washington said and did during his own Presidential Administration, largely because Washington's first Secretary of the Treasury happened to be the aforementioned Alexander Hamilton who also emerged as the first political leader of these Federalists]). The Federalists were, for the most part, the inheritors of a political tradition identified by historian Jackson Turner Main as "Cosmopolitanism", itself going all the way back into at least the late Colonial Period of American History and supported primarily by those living along- or close to- the Atlantic seaboard (along with inlanders in those States- those in New England, as well as New Jersey and Delaware- largely unaffected by the Proclamation Lines, drawn by the British Crown along the heights of the Appalachian mountain chain during the decade or so prior to the American Revolution, preventing white settlement into the Ohio Valley and other lands east of the Mississippi River left- by the wishes of British geopolitics- to the Native American Indian tribes).

Arrayed against the Federalists were supporters of Thomas Jefferson, who came to be styled Republicans (in order to distinguish these "Jeffersonian" Republicans from the current Republican Party US dated back only to the mid-1850s, historians have long used the designation 'Democratic-Republicans' to describe them; however, 'Democratic Republican' was how the later supporters of Andrew Jackson for President styled themselves [in contradistinction to the 'National Republican's supporting John Quincy Adams for President: these 'National Republicans' would soon become the Whig Party, while "Jacksonian" 'Democratic Republicans' would- even sooner- become, simply, Democrats] and, therefore, using the same term to describe Jefferson's followers might only serve to fuel much confusion. Therefore, the term "old Republicans" is now the more often invoked as the name of the party of Jefferson when considering it within the context of overall American History). These Republicans were the heirs to a political philosophy which Professor J.T. Main denominated "Localism", generally supported (again, well back into Colonial American History) by those living inland and upland into at least the foothills those same Appalachian mountains (and, thereby, very much affected by the Crown's Proclamations of 1763 and 1768- as well as the Quebec Act of 1774- preventing white settlement to the west of those same mountains).

The landed gentry in a Southern State such as Virginia, meanwhile, tended to be split, politically: those of the Tidewater (from which George Washington himself had sprung) more tended to be Federalists; while those of the Piedmont (such as Thomas Jefferson) tended towards becoming Republicans-- this, even though both types of Virginia gentries had well participated in speculation in land beyond the Appalachians prior to the Revolution (Washington's own early military career- that during the French & Indian War which, among other things, first delivered the Ohio Valley into British hands- was the direct result of his even earlier service as a teenaged surveyor out on the frontier, determining and setting the "metes and bounds" of just such land claims).

The adoption of the term 'Republicans' by Jefferson and his supporters was no accident, by the way. By the time the Federalists and (old) Republicans had each emerged as (potentially) national political factions in the early mid-1790s, the French Revolution was already well under way: in fact, by the end of 1792 (the same year in which American Presidential Electors would re-elect President Washington and Vice-President John Adams), the first French Republic had already been instituted. These Jeffersonian Republicans could certainly discern that the President of the United States, indeed, might function very much as the 'elected king' I have already described above and- American supporters of French Republicanism, for the most part- they were not all that fond of that particular function of the Nation's Chief Executive! Jeffersonians, instead, generally supported the notion- as specifically outlined in Article 6 of the French 'Declaration of the Rights of Man'- that [t]he Law is the expression of the general will. All citizens have the right to take part, personally, or through their representatives, in its making.

This, of course, was the very antithesis of the Federalists' belief in the Judiciary as the very bulwark of Rule of Law (in which- as I myself once put it: Law was but the by-product of its own "due process", one that had been acquired- and slowly- over time (...by an independent Judiciary operating- at least in theory- apart from direct political influence...). By contrast, the old Republicans operated under that constitutional philosophy known as 'Legislative Supremacy', in which the elected representatives of the People would ever be paramount (because the People were themselves the very source of that Sovereignty Government itself enjoyed- but only in the People's name); under this concept: if a statute were to be passed (and either signed into Law- by President (or, for that matter, Governor)- or, if vetoed by the Chief Executive, said veto could thereafter be overridden by the legislature [whereby the statute would then become Law anyway]), it was- by very definition- constitutional: should the People come to feel otherwise, they could always "throw the bums out" at the next election for said legislators and put in their place new legislators who, in turn, could then repeal any law previously adopted that the People might, however more recently, have found rather obnoxious.

'Legislative Supremacy' is what, throughout the 19th Century and on into the 20th, would pretty much come to form the basis of what are known, today, as Parliamentary Systems of Government (in which the Head of Government [a 'Prime Minister' or 'Premier' (or, in German-speaking lands, a 'Chancellor')]- ever someone other than a [primarily] ceremonial constitutional Monarch or President acting as Chief of State- was solely responsible, as were any and all of the government ministers in his/her 'Cabinet' (or 'Council of Ministers') forming what would be called "the Government", to the elected representatives of the People in the country's Parliament (or Diet). The next election for members of said Parliament/Diet could very well force a new 'Government' to be created, one that would not do that which the People themselves had found so objectionable when done by the previous such 'Government' (even though, at the time of their own election, said previous 'Government' was then seen as being the "voice" of that same People!). Parliamentary Democracy demanded, as it still demands, that the People- fickle though they might, at times, appear to be- be ever allowed to (and perhaps quickly, too) change their own minds.

In the Jeffersonian Republican constitutional construct, then, the Executive was pretty much but an Administrator- principally engaged in fulfilling that which the U.S. Constitution itself mandated in its Article II, Section 3: that the President "take care that the laws be faithfully executed"-- faithful to whom, though? To the People (ultimately)- or so said the old Republicans- under the theory that the Law itself (that which was to so "be faithfully executed") was alone the truest repository of the People's will (that is: the People's own wishes as to governmental policy). The 'Hamiltonian' Federalists, of course, saw a far greater role for the President of the United States as someone (the, as one early Federalist proposal for an official title for the President put it, "Guarantor and Protector of the Liberties of [the United States]") who, instead, could (as could a king- or, for that matter, emperor) act- when it might be seen as necessary- should the legislators themselves fail to act or might even be fearful to do so, as he most certainly could when the legislature itself was not even in session!

As for the Jeffersonian Republican notion of statutes drafted and adopted by the legislators (so long as these statutes actually, thereafter, became Law) alone being the determinant Law (and, therefore, ever constitutional in and of themselves), Federalists could not at all accept such a thing: for didn't the Constitution (in its Article VI, clause 2) declare itself- along with, admittedly, "the laws of the United States which shall be made in pursuance thereof" (that which the 'old' Republicans themselves held in the highest regard) and "all Treaties made, or which shall be made, under the authority of the United States"- "the Supreme Law of the Land" to which "the judges in every State shall be bound... anything in the Constitution or laws of any State to the contrary notwithstanding"?-- did not also (per Article III, Section 2) "the [Federal] Judicial Power... extend to all cases, in law and equity, arising under" that which was so specifically defined- in the very text of the Constitution- as "the Supreme Law of the Land"? How could Jefferson and his supporters then reasonably (let alone constitutionally) argue against the courts, and not the legislatures, as being the surest arbiters of what American Law- on either the Federal or State level- should, in fact, be?

In any event: the political gauntlet had, thereby, been thrown down come the 1796 Elections (the first to be held after President Washington had announced he would not be seeking, nor accepting, a third term) and- while Jefferson's Republicans considered the acts of the legislature (as the very embodiment of the Will of the People, as well as their Liberty) to be supreme, Hamilton's Federalists would look upon both the Presidency and the courts as the very defenders of Rights against just such a 'Tyranny of the Majority' as Legislative Supremacy itself portended. As things turned out: the Republicans would, as the 18th Century became the 19th, win politically and electorally (to the point where the Federalist Party then began its slow quarter century of decline, decay and- by the time John Quincy Adams [himself originally a Federalist like his father] became President- outright disappearance from the pages of History); yet the Federalists would, nonetheless, manage to more or less enshrine Judicial Review before they had so completely vanished as a Party (thanks, in no small part, to the declaration by Chief Justice John Marshall [a Federalist, after all] in his Opinion of the Court in the case of Marbury v. Madison [1 Cranch (5 U.S.) 137 (1803)] that [i]t is emphatically the province and duty of the Judicial Department to say what the Law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case- so the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law- the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution- and the Constitution is superior to any ordinary act of the legislature- the Constitution, and not such ordinary act, must govern the case to which they both apply....

or, as this same Chief Justice Marshall would, later, far more succinctly put it- in his Opinion of the Court in McCulloch v. Maryland [4 Wheaton (17 U.S.) 316 (1819)]: We must never forget that it is a constitution we are expounding).

Nevertheless, there was a "third way"- one in between Legislative Supremacy on the one hand and Judicial Review on the other: that which is known as 'Institutional Egalitarianism' and is seen to be derived from the views of James Madison (who- as President Thomas Jefferson's Secretary of State- was the one being sued by Marbury in the case, the Opinion of the Court re: which I have quoted above) but which saw its 'classic' usage during the Administration of President Abraham Lincoln trying (successfully, as things turned out) to save the American Union in the midst of the Civil War.

Madison, although a political ally of Jefferson (as well as an early leader of the [old] Republicans in the U.S. House of Representatives), was never as 'republican' (in the manner of those French revolutionaries so often lionized by many a 'Jeffersonian') as was the Thomas Jefferson of the 1790s (that Jefferson, once he had become President in 1801, clearly saw no little advantage within the 'king'ship- let alone the 'emperor'ship- of the American Presidency is, however, not much doubted [especially considering that it was Jefferson who, as President, negotiated the Louisiana Purchase- something that so greatly expanded America's 1st 'Empire']: "We are all Republicans, we are all Federalists", indeed!): yet, while searching- in the course of his own constitutional musings (such as his own contributions to The Federalist [Papers], of which Hamilton wrote the greater part)- for some "tribunal" (Madison's own term) to "enforce the Constitution" (his own words)- that is: when necessary, rein in each of the Branches of the Federal Government- he seemed never to be completely comfortable with either Congress, the President or the Federal courts alone determining the underlying meaning and fundamental efficacy of the Nation's fundamental document.

The best solution to this dilemma seemed, in the main, to be in the treating of each of the three Branches of Government as what they actually were under the very notion of Separation of Powers: co-equal (and it is such equality between basic governmental institutions as are these three 'Departments' that gives us the very term 'Institutional Egalitarianism'). Put most simply: each such Branch of Government would determine the constitutionality of its own acts (through the mere device of their so acting [yet one more "machine that would go of itself" built into the American Constitutional System]); since there were three such Branches, where two out of these three might differ with the third as to the constitutionality of said third Branch's own actions (independent of the other two), such actions would then be- by, in effect, a "vote" of 2 to 1- rendered unconstitutional!

Ironically, Chief Marshall- of all people- actually well stated the very foundation for this concept of Institutional Egalitarianism in his own Opinion of the Court in the aforementioned Marbury v. Madison where he opined that the People have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness and that this very concept is the basis on which the whole American fabric has been erected. Marshall then went on to say that [t]he exercise of this original right is a very great exertion; nor can it- nor ought it to be- frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different Departments their respective powers. It may either stop there, or establish certain limits not to be transcended by those Departments. The government of the United States is of the latter description. The powers... are defined and limited; and that these limits may not be mistaken, or forgotten, the Constitution is written.

Marshall, of course, thereafter went on- based on his own notion that an act of the legislature, repugnant to the Constitution, is void and, therefore, could not bind the courts (for if it be not law, it could not then constitute a rule as operative as if it was a law)- to justify Judicial Review in that which I have already quoted earlier from that most famous case within American Constitutional Law. However, that which Marshall himself referred to as the "original and supreme will" (that of the People)- which, in turn, "organizes the government, and assigns to different Departments their respective powers" and, further, "establish[es] certain limits not to be transcended by those Departments" (so "that these limits may not be mistaken, or forgotten, the Constitution is written")- is that which has actually provided the basis for the very equality between said Departments (that is: Branches of Government- Legislative, Executive and Judicial) expressed within Institutional Egalitarianism, this despite Marshall's so going on to thereafter declare the Judiciary the sole "umpire" as to the constitutionality of a given statute, rule or regulation or executive order.

Every officer, whether elective or appointive, within each Branch of the Federal Government- save one, and only one, such officer (whom I shall come back to shortly)- takes the same solemn Oath of Office before entering upon their respective duties, one in which- among other things- they each pledge to support and defend the Constitution of the United States against all enemies, foreign and domestic. From a constitutional perspective, then, it is presumed that whenever said officer (whether- say- Congressman, Administrator of a Federal agency, or Federal judge) acts, they are acting each according to their own respective, personal understanding as to what so 'support[ing] or defend[ing] the Constitution' actually means. A given Congressman, for instance, might well sincerely believe a bill introduced by a fellow Congressman is, in fact, unconstitutional and this will likely cause him/her to (should said bill make it through committee and onto the floor of the House) vote against it; but this Congressman's opinion (albeit based on his/her own understanding of his/her own Oath of Office) does not mean that the Congressman introducing said bill cannot- and just as sincerely- believe his/her bill to, in fact, be constitutional-- in addition: one Congressman's (or Senator's) opinion- as so explained herein- does not alone determine said bill's constitutionality or lack thereof!

Within this concept of 'Institutional Egalitarianism', it is the collective actions of- in the foregoing example- the legislative body as a whole that determines that particular Branch's view of what is, and is not, constitutional (it is here presumed, then, that if both houses of Congress have passed a bill and, thereby, sent it on to the President's desk [regardless of what the President thereafter does with it- sign it or no], Congress has already then indicated its own collective opinion [despite a minority of members therein that might, even most strongly, disagree] that the bill so passed is, in fact, constitutional); likewise: while a, say, 5-4 vote in the U.S. Supreme Court yet determines the outcome of a given case before it no less than does a High Court acting with unanimity, this does not mean the four dissenting Justices suddenly slap themselves upside the head ("I coulda had a V8" style) and say to themselves 'Oh, gee: I guess I was wrong about my own sense as to the constitutionality of this issue before us, after all!'.

However, there is one- and, again, only one- Federal officer who takes an Oath of Office significantly different from all the others-- and that Federal officer happens to be the President of the United States!

For the President alone is mandated- specifically by the Constitution itself- to pledge that to the best of my ability he/she will preserve, protect, and defend the Constitution of the United States: all the other officers of the Federal Government (along with those who might join the U.S. Military, as well as newly-naturalized American citizens reciting the Oath of Allegiance) agree to "support", as well as "defend", the Federal Constitution; but only the President- America's 'elected king', as well as 'emperor' of its own "Empire" (for reasons already examined above)- is required, by virtue of his/her Oath of Office, to "preserve" and "protect" it, as well as "defend" it!

On the eve of his first Inauguration in early March 1861, incoming President Abraham Lincoln told quite a few people who were concerned about how he would deal with the fact that a number of the recently seceded States had already, a month earlier, formed something they themselves were calling 'the Confederate States of America' that, as President, he would be required to enforce "the Constitution as it is": but what was Lincoln's 'Constitution as it is'? Answer: the Constitution as Lincoln himself understood it, an understanding that would- as it, in fact, did- guide his public actions as President throughout the Civil War at that time only just brewing.

Not all of President Lincoln's public actions were necessarily good, however necessary they might have seemed, at the time he so acted, to that President (Lincoln's unilateral suspension of the Writ of Habeas Corpus being a noteworthy example) and not all such public actions were, in the end, constitutionally sustained (for example: in addition, Lincoln authorized military commanders outside the Civil War's Combat Zone [that is: within what would be termed "the Zone of the Interior" (the 'Homeland' itself)] to impose Martial Law in order to better thwart spying and other potential Confederate skulduggery in the Northern States: it would, ironically, be a Lincoln appointee to the U.S. Supreme Court (as well as personal friend of Lincoln's), Associate Justice David Davis of Illinois, who- this after Lincoln was already dead, however- would note that the Constitution does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law and that [t]he illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to be forever inviolable and, further, that [m]artial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectively closes the courts and deposes the civil administration in his Opinion of the Court for the case of Ex parte Milligan [4 Wallace (71 U.S.) 2 (1866)])...

but President Lincoln was- prior to just such a constitutional finding by the High Court- perfectly free to apply his own understanding of the Constitution to his own view(s) as to what he had to do in order to the better "preserve [and] protect", as well as "defend", it as the Oath of Office he himself took might- in his own mind- demand. Congress and the courts could very well have thereafter been quickly brought to bear against President Lincoln- based on their own respective understandings of the Constitution, where these might have differed from Lincoln's- but, so long as the Civil War raged, were not- or were not able to be- so brought to bear (only after that internecine conflict had abated could, say, a Justice Davis then make so plain the unconstitutionality of the by-then late Abraham Lincoln's own approach in this regard: thus, the very life of Lambdin Milligan of Indiana was spared in a manner in which that of many others before him- with similar motives and intent as Milligan himself had had- were not; such is Politics, during wartime but also during times of peace- as unfair as that might, in the main, be).

So what was there to prevent a President Lincoln- for that matter, what is there now to prevent a President Obama- from simply riding roughshod over the Constitution of the United States in real time? The answer to this very question is 'Institutional Egalitarianism' (each Branch of Government deciding, for itself [when the time comes], what is- and what is not- constitutional) with- thanks to Chief Justice Marshall's long-ago words in the case of Marbury v. Madison- 'Judicial Review' brought to bear, if necessary, before things might get too out of hand.

Thus, what will happen in the case of President Obama's 'Executive Action' is what has ever happened in just such cases: a President has made his own determination as to what the Constitution allows him to legally do-- ordinary American citizens and members of both houses of Congress all can thereafter either agree or disagree: citizens can always put pressure on their respective elected representatives in that Congress to agree, or disagree, with the President's acts, as well as his own reasoning for them; members of Congress, themselves, have the same right and power- as does the President- to decide whether or not what the President has done is constitutional based upon their own respective interpretations of their own Oaths of Office (despite the aforementioned difference in the wording between the Oath a President takes and that of a Congressman or Senator); a case can, perhaps, also be brought in Federal court challenging the President's action(s), a case that might well work its way- through the process of appeal thereafter- all the way up to the Supreme Court itself...

but nowhere in this whole political drama is the Constitution itself- or, for that matter, the Republic it both brought into being (in the form of the American Union become effective in 1789) and yet serves to this very day- being destroyed!

For what is actually involved, in this case, are two related issues as regards the Republican Party per se: first, and most superficially, there is much anger among many- if not most- Republicans that Obama's 'Executive Action' came so soon after they, and for the second Midterm Election in a row, well defeated Obama's own Democrats (four years ago, the Grand Old Party seized back that control of the U.S. House of Representatives they had lost four years before that; this time round, the GOP also took control of the United States Senate for the first time in eight years)-- in effect, then, the President has flagged the Republicans for their 'touchdown dance in the end zone' after having 'scored' and they don't much like it...

second, and this goes much more deeply, the President has also hit the political 'ball' back into the Republicans' 'court' (and, further, did not much mince words while doing so, specifically declaring "to those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: pass a bill!"-- for his, as well as his Party's, own part, Speaker Boehner responded that "Republicans are left with the serious responsibility of upholding our Oath of Office" [however, thereby, implying that Democrats in general- and Obama in particular- do not (but please see what I have already written above about such things)-- REB-A] and that "[w]e will not shrink from this duty"): both Boehner and Senate Republican Leader Mitch McConnell (R-Kentucky) have also indicated they will get some kind of Immigration Reform Bill passed by their respective houses of Congress (though it may not necessarily be one that the President would be willing to sign)-- just such a thing, of course, would well 'parry' Obama's 'thrust' (putting that same political 'ball' back into the President's own 'court').

All in all, then, this will play itself out throughout the newly elected 114th Congress and the concomitant 2016 Presidential Election Campaign: all the while, however, the Constitution of the United States will actually be working, for the very reasons I have already outlined in this piece-- hardly a constitutional crisis!

 


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