Mark Levin recently published a note on his Facebook page in which he rightly points out that Obama's recent invocation of executive privilege with regard to the congressional investigation of Eric Holder's conduct "flouts the law and the Constitution." He goes on to say, again with good reason, that "executive privilege is a very important implied executive power." Whenever you see a reference to "implied powers" it's a good idea to ask yourself, implied by what authority? In the usual fashion of lawyers trained in the shibboleths of legal positivism, Holder cites Supreme Court opinions. But the Supreme Court has no power but what is explicitly delegated to the U.S. government in the Constitution. What gives the Court, the president or the Congress for that matter the authority to imply powers and privileges the words of the Constitution nowhere enunciate?
The best the legal positivists can do is to cite Article I, Section 8, of the U.S. Constitution, which gives Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other power vested by this Constitution in the government of the United States, or in any department or officer thereof." At best this gives Congress the power to recognize by law the actions it considers "necessary and proper" for carrying out the provisions of the laws it has made. But how does this give Obama or any other president the power to shield civil officers accused of breaking the law from investigation by the branch of government charged with making the laws?
Though people fond of pretending that "strict construction" of the words of the Constitution is an adequate summary of the discipline required to interpret and implement it, the people who devised and defended the document in the first place were in a situation that did not afford the luxury of this pretense. Having not yet consented to the Constitution's words, people were of course not yet bound to respect them. But isn't this very like the situation every generation must face when dealing with the supposed implications of the powers referred to in the Constitution? Where there was, as yet, no ratified agreement on the words, people in the founding generation debated ratification by appealing to the natural authority of reason and common sense. Where there is no ratified agreement on assertions about the unstated implications of those words, doesn't it make sense to appeal, in our discussions, to that same authority?
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For example, in introducing the general topic of the powers needed for the common defense of the nation, Hamilton wrote:
"The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances. … This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained."
The care of the nation's safety is above all the business of the U.S. government, and in particular of the Executive Branch. If the corresponding power must be coextensive with all circumstances, and the possible circumstances are infinite, Hamilton's appeal to the authority of common sense, (which, by his reliance upon logic, also involves an appeal to reason) logically implies an unlimited grant of power, or at least a grant not limited by any prior constraints that would prevent the Executive power from taking any action deemed necessary to defend the nation. Because of the purposely superficial understanding of the Constitution prevalent in our public discourse these days, a conclusion Hamilton sees as self-evident will startle many contemporary readers. This is especially likely for those who are used to the studiously incompetent articulation of the principle of limited government characteristic of many so-called conservatives in the GOP leadership.
However that may be, Hamilton's view appears to have prevailed in devising the Constitution. It is the logic that leads to the rarely noticed, but critically important fact that, except in cases of impeachment, the president of the United States has the power to reprieve or pardon all offenses against the United States. (At this point I think it would be helpful to most readers to read and ponder the article I posted this week at Loyal to Liberty defending the proposition that Obama's abuse of power regarding immigration law demands a "national inquest," i.e., impeachment.) Whether it's Eric Holder's contempt of Congress or someone else's breach of law or judicial order, the president can shield those he sees fit from the consequences of their conduct, even when by doing so he "flouts the law and the Constitution."
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What is usually called "executive privilege" is just one aspect of this power, which is not so much "implied" as intrinsic to the nature of government itself. The pandering politicians of our day may be foolish enough to pretend that government is a benign and non-threatening reality. America's founders thought through and acted upon a more starkly realistic understanding of its implications. They did not shrink from the fearsome truth that government power feeds on the ever present substance of implacable necessity, and therefore never lacks excuses for enlarging its dominion. It is the tragic irony of the human condition that in using government to defend themselves against destruction societies must build into their government powers capable of destroying them.
In this respect the dangers of unlimited government power, like "the latent causes of faction" are "sown in the nature of man. …" In Federalist No. 10, Madison observes that liberty cannot survive efforts, by prior restraint, to suppress the causes of faction. Apparently he and the other framers who supported the Constitution shared a similarly realistic assessment of the unlimited power implied by the infinite variety of dangers that threaten the survival of nations. However, since reason and common sense forbid prior restraint they made it necessary for the representatives of the people to be actively vigilant in reacting against abuses of power. They understood that any exercise of the prerogatives that ought to be reserved for extreme necessity will, by gradually inuring people to abuses, help designing despots to establish an absolute tyranny over society. Only a fool (or the one who's fooling him) holds back the use of his fire extinguisher until a small fire has grown into a general conflagration.
So (as I point out in the above mentioned article on my blog), we come to impeachment. Only by impeachment can the Congress remove the underlying power of pardon and reprieve which is, by the authority of natural reason and common sense, recognizable as the source of executive privilege. The Constitution explicitly removes that shield in cases of impeachment. Any president who invoked it to shield a subordinate or himself from impeachment would, by that act alone, convict him/herself of a high crime, tantamount to treason. Others who join to defend such a president would, in effect, join in open and self-evident rebellion against the Constitution of the United States.
As I say in my blog article, around this turn of events there lurks the fearful specter of civil war. Eric Holder began his tenure as attorney general by declaring that Americans are "a nation of cowards." He and the man he serves are now testing that proposition. They are probing with bayonets, testing whether anything remains of the hardy mentality, the clear-eyed determination, the faithful heart and courage that impelled the American people to greatness. Will the GOP leaders in Congress rise to the level of active vigilance the Constitution requires? Will they begin by impeaching Eric Holder? (Contrary to a popular misconception, the congressional power of impeachment applies to all civil officers of the United States [U.S. Constitution, Article II, Section 4].) Will they go forward, if need be, to impeach the breach of faith with America's Revolutionary principles that Obama himself represents? Or will they succumb to the moral disease of supine and self-interested calculation whereby the cynical politics of elite domination works to enlarge that breach, until it has spread the fatal disease of cowardice and despair throughout what was, and still should be, this home of the brave and the free. (I address the subject of the GOP's likely response in my most recent blog post.)