Saturday, December 21, 2013

The President's "Royal" Preogatives

"Nip the shoots of arbitrary power in the bud is the only maxim which can ever preserve the liberties of any people."
                                                                                     --John Adams

When we consider the idea of rights and liberties these days, the individual rights and liberties enshrined in our federal Bill of Rights most often come to mind. The creation of the Bill of Rights resulted from the concern expressed by many Americans about the newly strengthened national government created by the Constitution of 1787.

In our revolutionary struggle with Britain, however, we did not emphasize violations of these fundamental rights by our mother country. The British king and parliament never systematically violated the fundamental rights of religion, speech, press, property, etc. Rather, the concern of the revolutionary generation was a more general threat to liberty: the threat posed by arbitrary power.

So what is arbitrary power? First, it is living in subjection to laws not of our own making. This was the whole point of the expression, "no taxation without representation." The colonists found themselves subject to tax laws that they had no say in enacting. Over the course of several years,  the British Parliament enacted many laws governing navigation, trade, revenue, and relations with the American native population that the colonists had no say in making. They had no representatives speaking for them in Parliament. In response to these claims, the ministers or their supporters argued that members of Parliament represent the whole British nation, wherever they may reside, so that the colonists are "virtually" represented.

A second aspect of arbitrary rule is that no real recourse exists to change such laws or to appeal decisions rendered under these laws. American colonists sent petitions to the King, but he more often than not refused even to receive them. The Americans turned to non-importation agreements to apply economic pressure. And then they turned to war.

This explains why revolutionary rhetoric of the colonists often made the claim that the colonists were being turned into slaves. Some historians argue that such claims revealed an "irrational" element in the colonists' ideology or simply serve as examples of literary hyperbole.

The founders did not believe that the king, his ministers, or the Parliament literally planned to enslave them and make Washington and Jefferson pick their own tobacco or wheat. They merely meant that subjection to arbitrary rule was characteristic not of independent persons, but of slaves. Slaves live under the arbitrary authority of their owners. Their masters may be kind; they may be cruel. Slaves, however, have no legal say in how they will be governed and have no real means of appeal. This is arbitrary power.

The Founders, as good Englishmen, thought that the use of arbitrary power by the king, at least, had been done away with decades before in the Glorious Revolution of 1689. The English Bill of Rights established afterwards specifically forbade the king from arbitrarily modifying laws of Parliament in the very first clause of their justification for forcing the abdication of King James II:

"By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament."

Nearly 240 years after we began our revolution against arbitrary rule, we Americans seem to be gradually becoming subject to it once again.

In Congress our elected representatives repeatedly write vague laws that require administrative agencies to interpret how such laws will be executed and administrative courts to interpret them. Or our representatives intentionally delegate such authority to the bureaucratic agencies.

In the Supreme Court, justices seem "on the lookout" for cases to establish radical alterations in society through Constitutional misinterpretation and to get their names in the law journals and history textbooks.

In the White House, presidents of both parties expand the reach of their powers through the use of executive orders.

The trend is especially evident under our current President.

Without statutory authority, President Obama has changed immigration laws, drugs sentencing guidelines, and a host of other laws. The most egregious examples have occurred in the administration's attempts to shore up ACA. Most recently, Kathleen Sebelius announced a "hardship exemption" for those who lost insurance coverage that failed to qualify under the term of the ACA. Those covered by the exemption can temporarily secure insurance covered outside the state and federal exchanges. Their hardship, of course, occurred because of the ACA.

The modification was the most recent of several changes since the ACA went into effect. 

In October 2011, the administration scrapped a long-term care insurance program created by the new law, saying it was too costly and would not work.

In April of this year, the administration said that the federal exchange would not offer employees of a small business the opportunity to choose from multiple health plans in 2014.

On July 2, 2013 the White House abruptly announced a one-year delay, until 2015, in a provision that requires larger employers to offer coverage to their workers or pay penalties. 
On Nov. 2 2013, it deferred a major element of the law that would allow small businesses to buy insurance online for their employees through the federal exchange.
Apparently HHS officials, like Nancy Pelosi, failed to read the ACA to find out what was in it. 

And now the President has assumed powers traditionally known as "royal prerogatives" under monarchical regimes. This sets a dangerous precedent not only for contemporary Americans but for future generations, as later presidents will not doubt assert the same claims to such "presidential prerogatives."

We fought a revolution to win our independence from the authority of a monarch. 

America does not need another one.

1 comment:

CW said...

Thanks for the historical perspective on this, V.L. Are people unable to see what's happening or are they parties to it,hoping that they'll benefit at someone else's expense? I think there's some of both going on.

Have a merry Christmas!