And now, a civics seminar ... first posted in 2017

 

I have long been an originalist strict construction libertarian believing as did Mr. Jefferson (the slave owner and sage) that "the best government is the least possible."  The trick being to discern what the least possible might be. 

Therefore I find it odd that I am somewhat disturbed by what is being said on the Democratic Party side of Congress, in the MSM and by the left wing commentariat about what they say or imply are the very narrow limits of presidential power.

As a reminder, the federal judiciary (judges) is not part of the executive branch of the federal government and the president has no control over them except by exploiting the ambitions of judges for promotion on the bench.

Nevertheless, in their rage against DJT, the left are claiming:

1.  That the Attorney General and the Department of Justice are not really subordinates of the president and that they are somehow exempt from his control.  This, in spite of the fact that the AG is appointed by the president, is a "line" subordinate and serves "at his pleasure."   That means that the president can fire an AG at any time, for any reason or for no reason in particular.

2.  It is said with a pious air of violated rectitude that Trump fired all the US Attorneys across the country.  For those who do not know, these are the federal prosecutors in each federal court district,   They are politically appointed employees of the Justice Department, not the courts, and it is a normal practice to replace them all in a new administration.

3. Brennan, Clapper and Rogers stage managed a paper back in January that asserted that the IC believed various things about Russian government tinkering with the US election (much as the US does in other countries' elections).  The paper was represented to be an IC wide opinion (like an NIE).  In fact the paper was the work product of two of Brennan's analysts.  Clapper gave it his imprimatur  as DNI.  Admiral Rogers at NSA could not get his people to express more than limited confidence in it and Comey at FBI joined the chorus wearing his intelligence "hat.".  DIA, State Department INR, the Army, Navy, Air Force and other agencies were either not consulted or did not deign to "sign on."  DJT thinks this is a "rum deal," a phony politically motivated procedure run by a group of "hacks.".  Why would he not think that?   But, no matter, the reaction of the Left is to excoriate him for his lack of "respect", for these people.  Once again, these people have no legal or constitutional existence outside the framework of the Executive Branch.  Any president can dismiss them at will  No president is under any obligation at all to accept their opinion on anything.  They are his advisers and tools in his kit box. and that is all they are.

4.  Tillerson at State has the rapt attention of the Left in his every utterance.  Any expression of DJT"s displeasure with Tillerson's opinions is described as irresponsible.  Once again, DJT can fire Tillerson tomorrow.

5.  And then there are the generals.  Mattis acts as though he has been sub-contracted the future of the world and that Trump is just a nuisance.  McMaster does the same.  In fact they are as much his creatures as any of the others.

Enough!  The US federal government is not a parliamentary government.  DJT is not "first among equals" as is the PM in a parliamentary government.

The president's powers are limited by law and the constitution but not by custom, tradition or opinions.

The Democrats should think through how much they will not want these ideas of an incredibly shrinking presidency to be applied when next they win the WH.  But then, they will have the Leftist press behind them.  pl 

https://en.wikipedia.org/wiki/United_States_federal_executive_departments

https://en.wikipedia.org/wiki/United_States_Department_of_Justice

https://en.wikipedia.org/wiki/Federal_judiciary_of_the_United_States

Comments

[steve]

" It is said with a pious air of violated rectitude that Trump fired all the US Attorneys across the country. "

I am sure this exists, but everyone writing about this on the left who should and can be taken seriously acknowledges that it was his right to fire them, and that every other president has also fired everyone. However, it has also been noted that it has been customary to let some people stay on to finish some high profile cases. It sounds like Trump had first agreed to let some people do that, then changed his mind. Again, it was his right to do that, it is just unusual.

1) He can certainly hire and fire the AG. However, once in office I thought that the AG was obligated by oath to carry out the law, i.e. even though an employee, as it were, of POTUS, still had an obligation to the Constitution. I could be wrong about this and maybe he is purely a political hire and must ignore the law to carry out what POTUS commands.

Steve

[turcopolier]

steve

All federal civilian employees and members of the armed forces are required to obey federal law and to require others to do so. This applies to the president and the AG like everyone else. There is no evidence whatever that Trump has directed or suggested to anyone that they should break the law. You have constructed a straw man out of Leftist innuendo. There is no law that prevents Trump from firing any of these people. Doing that would not be a violation of law unless it can be proven that his intention was to obstruct justice. As for firing US attorneys, this is entirely up to him. They have no right to their jobs. The jobs are political "spoils." pl

[Joe100]

My take is that this is a tantrum by those on the left (or elsewhere) who had enormous influence over Obama Administration policy and activities and were expecting to continue or enhance such influence under HRC.

In my work area I an aware that such influence under Obama was in many cases far beyond any that could be considered reasonable governance. As with the "Russia" meme, this vision of limited Presidential power is a desperate flailing for some path to recover their lost influence - without regard to the Constitution or other constraining factors.

And of course much of the influence such interests had under Obama was in areas where Obama was trying to radically expand presidential power through executive orders, etc.

[turcopolier]

james

You need to think more rigorously. What part of "necessary" did you not understand? pl

[Sylvia 1]

Are the people in the "commentariat" or even in the "Democratic Party" really "left"? Whatever "left" might mean in today's corporate dominated world.
"The visual media" is really "the corporate media" run by a handful of corporate executives who enforce a very limited range of allowable opinion. You know this from experience--if you don't say what they want, you will not be allowed on TV.
The print media is joke, completely reliant on "sources" and US agencies to provide the information for the stories they used to get from beat reporters around the world.
Both are shadows of their former selves where news and information are concerned. None of these "media" employ "reporters" or engage in real "investigations". They have to keep their sources and their advertizers happy.
The "Democratic Party" is certainly not "left". It's a corporate controlled entity full of focus grouped corporate candidates. The party cares about raising money and pretending to give a tinkers damn about ordinary people.
Colonel, there's no left left pretty much anywhere and no one even knows what a left wing movement would look like in today's world. I certainly wouldn't consider either the media or today's Democrats to represent the "left".
You are absolutely correct in pointing out that all of this hysteria is thoughtless and uncaring about the impact of their actions or what they advocate.

[turcopolier]

Sylvia 1

I have to describe them somehow. I like "left." pl

[Richardstevenhack]

"Once again, DJT can fire Tillerson tomorrow."

And I've been expecting him to do that for some time now. What's the point of having a Secretary of State in your cabinet that you never agree with? Trump dumped a ton of his other people, why not Tillerson?

As for "best government is the least government", as an anarchist I say "least is none". However, as a "post-anarchist" I have to say I've concluded that no amount of "society" is possible for humans. Every form of social organization falls apart sooner or later - including anarchism. The only one that ever lasted any length of time was tribalism which was dependent on relative small groups of people.

[scott s.]

The Tenure Of Office Act was the primary legal basis for the impeachment of Andrew Johnson. There were several additional articles offered by the House, but violating this Act seems to have been largely what conviction would hinge on. But the Senate trial come down to a legal question if a holdover appointment (SecWar Stanton appointed during Lincoln's first term) had completed his tenure as of the end of the first term (in that time, running to March 1865) and would require re-appointment before the terms of the law took effect.

The Act was repealed in 1887 when then President Cleveland questioned its constitutionality (the Act's authors claimed the "advise and consent" clause for appointments must also apply to removals).

[Stephanie]

I do not know of anyone who is arguing that the president can’t fire his AG. He can, of course, do that. In this particular case, Trump’s administration has already endured a great deal of turbulence, most of it generated by Trump. By firing Comey when he did and by the manner he did, Trump made any additional firings in the immediate future very dicey politically, hence his previous attempts to drive Sessions out of office by belittling him publicly. It did not work and for the moment Trump’s hands are tied.

Also, the fact that the AG is subordinate to the president and serves at the president’s pleasure does not mean that the AG and his department are not, and should not act, independently of the president when the law requires it. I assume that most people commenting here would not like to see a Department of Justice entirely subservient to, say, a President Hillary Clinton.

As far as I know, no one on the “Left,” or indeed anywhere else has expressed any great regard for Tillerson and his abilities in his present post beyond an acknowledgment that he has a lot to put up with. In fact, there seems to be general agreement that he’s created many of his own problems.

Mattis and Kelly have apparently agreed that one of them should be in the country at all times, presumably out of concern that the toddler-in-chief must never be left alone with the keys to the car.

[turcopolier]

Stephanie

"He made things more turbulent Blah! Bla! Blah! You and your ilk have persecuted him endlessly hoping to create the maximum amount of turbulence, mostly, I think, because you are half baked snobs who can't stand having this lout roll back, your revolution. Feel free not to come here. pl

[jsn]

I don't think its that simple, "necessary" is a highly debatable proposition.

For differing degrees of technological complexity, different complexities of government are necessary. I would posit that your government needs to be as complex as the technologies you would have it sustain. It must be complex enough to ensure that the power that always accrues to technological sophistication is prevented from usurping the popular will.

Left is not the same as Liberal: your critique here to my mind is of Liberals. On economic issues, I'm pretty far left but agree completely with your constitutional assessments regarding Justice and the Judiciary. Liberals have become completely unprincipled in their efforts to maintain the privileges they've accrued in the last 40 years at the expense of the left. This is the essence of the split in the Democratic party between the DNC Clintonites and Sanders supporters.

[turcopolier]

jsn

It seems that you do not understand how complex the word "necessary" really is. If we accept your advice then technology will dictate the level of complexity and government control of our lives. Thus NSA can intercept our evermore complex communications, so it must. pl

[TonyL]

Col,

I'd suggest we call them the Borg Left, and the Borg Right. My conservative friends are really annoyed to be lumped into the category as the Alt-Right, too.

[Paul]

I have two comments.

The first is it is probably a bad thing if we require a law to prevent all the things government shouldn't do. Recently I've been reminded just how much of what happens in US government is due to "tradition" and how easy it is to break with that tradition. IMO the Justice Department should be independent of the executive and the executive should not use it as a vehicle to persecute his or her political enemies. I would hope that we would not need a law for this. I recognize though that there is no law that prevents the president from firing the AG. It is just tradition (although I think there are laws against obstruction of justice...)

The second thing is that it appears to me that everyone seems to like power when it is exercised toward their ends. Left and right seem to generally agree on this. They don't mind "their" president exercising power but are opposed to "not their president" doing the same. I'm not super old, but nor am I young - I've seen it :-)

IMO power is a problem in and of itself. It is not like "the force" in Star Wars - where it exists and it can be used for "good" (by the Jedi) or "evil" (by the Dark Side) but other than that it is benign. Power is more like the ring in Lord of the Rings. Possession of it corrupts you - even if you don't use it. It certainly corrupts you if you use it whether for "good" or "evil." And people pursue it for its own sake - the fact that power exist makes it magnet that is eagerly sought out.

Sorry for the long post.

[jsn]

I think I have some understanding of how complex "necessary" is, but I avoid making strong claims because I also have a good sense of how little of all there is that I'm actually capable of knowing. And the subject matter you focus on here is where "necessary" is at its most complex: the legitimate needs of government for external security legitimizes a technological complexity that is the very essence, it seems to me, of tyranny when inwardly focused.

The issue is how you police the boundary between that outward and inward focus. I understand, maybe more modestly than most of your correspondents here, the real and scary exigencies of spy-craft and outwardly focused national security/defense. To oversimplify, all technologies are morally neutral, it's the agency of people deploying them that gives them moral meaning. I believe morality is the glue that holds every society together and as such the morality of those individuals who end up deploying the most sophisticated technologies is the greatest risk to society. It's Platos "noble lie" that the ideals of the guardians as a society will preserve the morality of the guardians as individuals. I wish I had something better.

It seems to me there is a never ending arms race between technology and social cohesion where, as technology evolves, the checks and balances crafted into our political institutions have to be updated to correspond to the new complexities inherent in technology. I heartily agree with your basic principle that "the best government is the least possible". But if the collective action that is government is to prevent tyranny, it will have to evolve its structures with technology to prevent the power asymmetries inherent in innovation from overtaking the power of public institutions.

If for instance government took the position that the data citizens produce in their interactions with digital media belonged to the citizens rather than the businesses or government agencies that structure our digital interfaces, that simple expedient would create a set of facts our historical system of law could use to protect citizens communications from both commercial and governmental exploitation. It is complex, but if individual freedom is to remain an ideal, complex structures must be built to preserve it in a technologically complex world.

Power asymmetries are magnets for the worst human impulses. The asymmetries inherent in cutting edge technological complexity are essential advantages to foreign intelligence and a necessary ambition in intergovernmental affairs because self defense requires anticipating the worst in others even while trying to discourage its expression, but if we are to remain free, internally we have to protect ourselves from this same complexity.

[jsn]

The simple answer is, no, not if our information is our own and our constitutional system protects our property. Sorry I had to go through that longer slog to get to this.

[Peter AU]

Whatever Trump is, he seems patriotic and loyal to his country, rather than to the hegemon or any other entity. That is something to be respected in anyone.
Judging by the recent play in SA, he looks to have the ability to lay low, or like a chameleon, merge into the surroundings and then strike the unsuspecting victim.

[mikee]

'Feel free not to come here' On the contrary, Colonel, I feel that you should welcome opposing views. It's your call, do as you wish. But I see nothing bad in a lively debate. "Just my opinion, could be wrong" - to quote Dennis Miller.

[mikee]

Stephanie: 'toddler in chief'? Show a little respect for your fellow countrymen who elected him. If that's too much to ask, perhaps you should return to your echo chamber.

[Stumpy]

Col. Lang,

The least necessary level of gov't in my neighborhood is maintaining a gravel road at the bare minimum width to accommodate an average garbage truck and present obstacles no higher than what an average family car can clear. Corvettes and BMWs need not apply. As of this year, school buses no longer come down the road, so students must walk up to 1/2 mile to meet their school bus at the "improved" gravel road. Progress.

Tillerson's removal would necessitate a replacement. Who wants to subject themselves to the nomination process and congressional grilling, let alone work for this administration? The Don has some pragmatic sense. I also get the sense that given the energy sector political influence, it was no question that Tillerson would sail through confirmation. I doubt that anyone with Tillerson's depth in C-level experience at an international 30-year-deal level is available.

[rusti]

I suppose you're not losing any sleep over the issue, Colonel, but as I'm sure you've noticed that nomenclature triggers emotional responses in a lot of people who would be otherwise be ideological allies on many fronts.

Perhaps analogous to referring to neocons as, "the right".

[Grazhdanochka]

I admit I have not necessarily much Position to speak as a Foreigner in what occurs for much all Domestic Affairs of the USA.

But if I may as brief Observation it seems both Parties have been increasingly prepared to use Arguments, Tactics and Reasoning against their Rivals that not only 'justifies' the other side applying them back when the Tables Turn (Birtherism - Trumps Origins etc) but which signal a spitefulness that leads to simple immobilization.

It would seem as this Article suggests that the Democrats may sooner or later have to face a Spiteful response on what they preach of 'Presidential Limits' when it is again their turn of Office though it appears they still the Attitude of that is Tomorrows Problem..

Both Sides increasingly seem prepared to try and force their Will on the other at the expense of reaching Compromise - This will I imagine just Cycle on and on as it stands... In the meanwhile It is hard to imagine how it leads to anything except both Sides attempting to undo the Efforts of the other.

[begob]

The surest way to cut short a conversation with a libertarian is to agree with his small state proposition, and then suggest that the first state subsidy to be stripped away should be limited liability for corporate investors.

[turcopolier]

rusti

I am not a politician and am not seeking allies. pl

[turcopolier]

mikee

You are right and I have done that for 12 years, but my patience is at an end. pl