With a Stroke of a Pen

I’ve been blogging for at least five years, now. I’ve been doing so right along with a lot of my other Lefty buddies, commenting on and applauding a lot of the same news sources, such as Rachel Maddow, Ed Schultz and what has become the entire MSNBC lineup. And right along with Bill Mahar, too. I thought I understood what they were saying when we all complained about George Bush, but in recent months, I’ve begun to doubt that.

In recent months, since the Obama Administration took the White House, Progressive talking heads have been consistently pushing on a number of issues. Gays in the military, Guantanamo, the stimulus package and many others. And the common refrain has been some variation of, “with the stroke of a pen, President Obama could end all this…”

Perhaps I’ve lost my mind, but I could have sworn that one of the things we didn’t like about George Bush was… his use of executive orders and signing statements to bypass the will of the Congress? Did I totally misread that? Because now that we have our man in the White House, we want him to employ precisely the same tactics that I recall people decrying as circumventing the U.S. Constitution. And beyond that apparent contradiction, there are a number of problems with executive overrides of this type which are also worth mentioning.

The first should be obvious: if we can turn over all of Bush’s executive hanky-panky this easily, so too can the next president “correct” the Obama Administration. I may be confused about what we Lefties were talking about a few years ago, but I remember my U.S. History and Government class, and this is definitely not what the Founders had in mind. We are not meant to be a cult of personality like Saddam’s Iraq or Kim’s North Korea. Our laws are not meant to be subject to the whims of the most powerful ape in the room. We may like things fast in our modern world, but some things are better left up to the stodgy, old, slow and yes, painfully prejudiced and ignorant Congress.

Secondly, if the president does not get the work done through Congress, Congress can always pass a law that circumnavigates his circumnavigation. Potentially, they can do so in a way that overrides the veto. Remember how Congress’ slowness was a bad thing? Well, with a stroke of a pen, you’ll be counting on it.

Third, in some cases, it’s really not that simple anyway. The president is sitting on a prison in Guantanamo filled with people who have been wrongly imprisoned. People whose basic human rights have been violated, which is a crime which our Constitution is particularly well-suited to prosecute… harshly. In fact, history buffs will know that the entire point of the Constitution is precisely that.

The president cannot simply wave his pen and declare “Do-over!” He cannot free Gitmo detainees without complications. And he certainly cannot do that by, once again, short-circuiting the legal process. The only legally justifiable means of releasing the Guantanamo detainees is by putting them on trial, but since most of the evidence against even those guilty of actual crimes against the United States was obtained via torture and is therefore not admissible, that means both the guilty and the innocent would be set completely free.

The CIA is another sticky wicket. The good and bad news about stable democracies is that the institutions of government – from the Department of Agriculture to the military to the CIA – maintain contiguous operation beyond presidential terms. The Department of the Interior does not suddenly loose all it’s staff and get repopulated every time a new president takes the oath, though it came close in the Bush Administration. It is this contiguous institutionalization of government that provides the democratic stability we enjoy as Americans, not the voting part. There is even an argument to be made that this bureaucratic stability is what eventually ground the Bush Administration down in the end: whistleblowers throughout the government leaked the documents and instigated the investigations that mired the Bushies down for the past three or four years.

But in the case of the CIA, that also means there are bodies buried deep in the vaults of that secret agency that no president has probably ever known about. And even if presidents do, we the public don’t. Again, untangling this web, especially where torture has been used, is not as simple as people seem to think it is. And as we’ve learned from the Bush Administration, the leadership can only push agencies just so far before they earn the ire of career bureaucrats who will outlast them. I’m quite certain that, as a Constitutional law professor, President Barack Obama is quite well aware of the problem torture presents. I’m quite certain that he’s interested in removing the stain of torture from our government – not out of ideological zeal, but out of fidelity to the Constitution he spent his life studying. But this, like much of the damage done by the Bush Administration, is going to take time to put right.

Of course, I understand that we need people to push issues. Just because a president with a D next to his name gets elected does not mean that the things we need done will get done. There has to be pressure on politicians if anything is to be accomplished, especially presidents; there needs to be a loyal opposition, a position for which the Republicans are ill-equipped these days. But we need to be cautious that, in pushing for small changes, we don’t arrive at unforeseen and lamentable large changes. Pressure is one thing, but irresponsibility is quite another.