I think Nixon was first to put forward the concept of sort of personal/presidential ultimate sovereignty: whatever the President, as chief executive and therefore chief law enforcement officer, does, is both de facto and de jure legal. So if the president authorizes an illegal burglary, it becomes magically, a LEGAL burglary.
In this, he was not relying solely on his own long-distant legal training, but the historical precedents of kings, and the legal advice of John Mitchell, John Dean, and other.
Despite the wealth of legal opinion behind the thinking, this notion was quite properly -- and spectacularly -- shot down shortly afterwards.
There are limits, and must be limits, but in historic practice it seems to me that Clarke's 2nd Law applies -- the way to determine the limits of the possible is to go beyond them into the impossible. And so the immediate need to quell the "Whiskey Rebellion" led Washington to use Federal Troops against US citizens to put down a portest by tax evaders -- and led Congress, afterwards, to develop laws prohibiting such use of the military thereafter. (Laws, in my opinion, evaded at the Waco siege, recently cited.) Jefferson's Louisiana Purchase was extraconstitutional but led to statutes defining how such acquistions would be handled, later -- laws applied to the additions of Alaska, California, etc. The Income Tax was an illegal tax to support WWI, later codified by constitutional amendment. (I confess I don't remember which president did it.) Teddy Roosevelt's creation of Panama, FDR's various new federal agencies, etc all involve similar take and take-back between the executive and legislative authorities.
The "War Powers Act" most notably retracted, after LBJ's abuses, the ability of later presidents to commit troops without Congressional cooperation. In my mind, this has not been strong enough, and the current "War on Terror" reflects the weak, ill-defined, sort of rubber-stamping of a presidential request rather than the more traditional "Resolution of War" in which the LEGISLATURE sets out the reasons for war, the particular enemies, and the goal. (So, in 1990 -- Push Iraqis out of Kuwait, or replace Saddam? Or in 1996, establish an independent and secure Kosovo, or simply replace,in a unified Yugoslavia, the genocidal Milosivich with some kinder, gentler, leadership?) A commander in chief may set forth a vision, but the POLICY is the function of the Congress. It's a function they have neglected and one we have allowed them to neglect.
Now, I am still concerned about Syria, Iran, North Korea, Venuzeula, Columbia, and a few other places becoming "failed states" where thugs rule and conspire with other thugs to attempt to "deter" the United States from interfering with their economies of crime. I am doubtful the United Nations is a useful body for organizing suppression of such crime. So I am in favor of exploring new roles for the United States in securing, for ourselves, our neighbors, and all our posterity, the blessings of peace and liberty.
I expect that the rules we develop for ourselves regarding non-citizens will be slightly different from the rules we develop regarding citizen -- just as the rules for juveniles criminals are different from the rules for adult criminals. Distinctions and discretion are not necessarily evil.
I expect that explorations and experiments into the new rule realms, will result in making some mistakes.
I would rather suffer mistakes of commission than omission -- failures of trying too hard, rather than failures to try. Overreach, and pull back; rather than under reach and fall short. YMMV.
I think of two major candidates now offered for my consideration, the frat boy is more likely to err by overreach. I think the veteran-against-war is likely to err in hesitation.
Some play-to-win. Some play-not-to-lose. I understand that reasonable people may prefer that we play-not-to-lose. I understand that in many circumstances the not-lose strategy is preferable. I don't agree that not-losing is the optimal game in the near term.
Re: distrust
I think Nixon was first to put forward the concept of sort of personal/presidential ultimate sovereignty: whatever the President, as chief executive and therefore chief law enforcement officer, does, is both de facto and de jure legal. So if the president authorizes an illegal burglary, it becomes magically, a LEGAL burglary.
In this, he was not relying solely on his own long-distant legal training, but the historical precedents of kings, and the legal advice of John Mitchell, John Dean, and other.
Despite the wealth of legal opinion behind the thinking, this notion was quite properly -- and spectacularly -- shot down shortly afterwards.
There are limits, and must be limits, but in historic practice it seems to me that Clarke's 2nd Law applies -- the way to determine the limits of the possible is to go beyond them into the impossible. And so the immediate need to quell the "Whiskey Rebellion" led Washington to use Federal Troops against US citizens to put down a portest by tax evaders -- and led Congress, afterwards, to develop laws prohibiting such use of the military thereafter. (Laws, in my opinion, evaded at the Waco siege, recently cited.) Jefferson's Louisiana Purchase was extraconstitutional but led to statutes defining how such acquistions would be handled, later -- laws applied to the additions of Alaska, California, etc. The Income Tax was an illegal tax to support WWI, later codified by constitutional amendment. (I confess I don't remember which president did it.)
Teddy Roosevelt's creation of Panama, FDR's various new federal agencies, etc all involve similar take and take-back between the executive and legislative authorities.
The "War Powers Act" most notably retracted, after LBJ's abuses, the ability of later presidents to commit troops without Congressional cooperation. In my mind, this has not been strong enough, and the current "War on Terror" reflects the weak, ill-defined, sort of rubber-stamping of a presidential request rather than the more traditional "Resolution of War" in which the LEGISLATURE sets out the reasons for war, the particular enemies, and the goal. (So, in 1990 -- Push Iraqis out of Kuwait, or replace Saddam? Or in 1996, establish an independent and secure Kosovo, or simply replace,in a unified Yugoslavia, the genocidal Milosivich with some kinder, gentler, leadership?) A commander in chief may set forth a vision, but the POLICY is the function of the Congress. It's a function they have neglected and one we have allowed them to neglect.
Now, I am still concerned about Syria, Iran, North Korea, Venuzeula, Columbia, and a few other places becoming "failed states" where thugs rule and conspire with other thugs to attempt to "deter" the United States from interfering with their economies of crime. I am doubtful the United Nations is a useful body for organizing suppression of such crime. So I am in favor of exploring new roles for the United States in securing, for ourselves, our neighbors, and all our posterity, the blessings of peace and liberty.
I expect that the rules we develop for ourselves regarding non-citizens will be slightly different from the rules we develop regarding citizen -- just as the rules for juveniles criminals are different from the rules for adult criminals. Distinctions and discretion are not necessarily evil.
I expect that explorations and experiments into the new rule realms, will result in making some mistakes.
I would rather suffer mistakes of commission than omission -- failures of trying too hard, rather than failures to try. Overreach, and pull back; rather than under reach and fall short. YMMV.
I think of two major candidates now offered for my consideration, the frat boy is
more likely to err by overreach. I think the veteran-against-war is likely to err in hesitation.
Some play-to-win. Some play-not-to-lose. I understand that reasonable people may prefer that we play-not-to-lose. I understand that in many circumstances the not-lose strategy is preferable. I don't agree that not-losing is the optimal game in the near term.