Monday, May 01, 2006

A Manic American Monday

I'm having one of those Mondays when I wonder if I'm still living in the United States of America, and if I am, what happened to it?

It seems we have a country where illegal immigrants have constitutional rights, retired military officers have none, and the commander in chief isn't subject to any law whatsoever.

A Boston Globe story from Sunday tells us that:
President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

I've written quite a few articles about Mister Bush's outrageous claims of absolute powers in his capacity as America's executive officer and the commander in chief of its military, but I hadn't realized that he's told the legislature to pack sand more than 750 times.

Is it legal for him to do that?

Apparently so, if he's decided it's up to him to decide what's legal and what isn't. The GOP controlled Congress isn't likely to tell him otherwise, and the Supreme Court seems too busy looking into whether Anna Nicole Smith is entitled to pursue a share of her late billionaire husband's estate to make any judgments on whether Mister Bush's arbitrary fiats on constitutionality are constitutional.

Filling the vacuum left by the Supreme Court is Attorney General Alberto Gonzales, Mister Bush's lawyer in chief, whose job appears to be to tell his boss that whatever he wants to do is legal.


How many wars are we in now? Are Iraq and Afghanistan separate wars, or are they part and parcel of the so-called Global War on Terror? What's Iran going to be?

I see now where the friends of the Bush administration are starting to liken Iranian President Mahmoud Ahmadinejad to Hitler. I recall a time not so long ago when Saddam Hussein was being compared to Hitler. How many Hitlers is it legal to have at the same time? Is there a rule on that, where once you have one Hitler in custody and on trial that somebody else can become Hitler?

I also see where Iran's Supreme Leader Ayatollah Ali Khamenei has compared Mister Bush to Hitler. How does that work? Is it one of those deals where each side of a conflict is allowed to have one Hitler? I guess that makes sense, in a world where the "evil doers" are squared off against the "Great Satan."


There's been quite a bit of discussion in the wake of the retired generals who have called for Donald Rumsfeld's resignation over whether retired retire military officers are subject to discipline under the Uniform Code of Military Justice for publicly criticizing Mister Bush, Dick Cheney, Donald Rumsfeld, and other "officials." At the crux of the issue is whether or not military retirees receive "pay" or "pension," and whether or not commissioned officers who retire are still commissioned officers.

Commander Jeff Huber, United States Navy, had quite a few legal authorities under the UCMJ. Commander Jeff Huber, United States Navy (Retired) has none. So does that make the retired commander subject to discipline under the UCMJ article that states:
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present, shall be punished as a court-martial may direct.

Hard to say, but the whole issue becomes moot in light of the fact that Mister Bush appears to be able to apprehend and hold any and all American citizens, retired military or not, as an enemy combatants, and deny their rights to due process.


In a separate but related issue:

Illegal immigrants are staging demonstrations across the country today to protest America's immigration policy. Apparently, it's legal for the illegals to do that.

What kind of country do we live in when illegal immigrants can protest government policies, but retired military members who are U.S. citizens--and who have done as much as anyone to earn their rights of citizenship--cannot?


  1. Welcome to Serf City, USA...?

    Or Mobland? where verybody plays their part.

    Military retirees? "Thanks, just STFU, if ya know what's good fer ya...!"

    Illegal immigrants? "March all ya want, tomorrow yer ass better be back pickin' _______, or else! Corporate profits uber alles!"

  2. Jeff:

    This post raising some very interesting issues. At the founding of the nation, it was the view by some that each branch of the government was free to interpret the Constitution on its on, as it saw fit. The idea was that if all three branches of the Federal government were truly "equal," then no one branch could bind the other with its own interpretation of the Constitution. The Constitution itself does not explicity grant the Supreme Court the power to be the final interpreter among all three branches.

    But of course many people at the time thought it was necessary and good to have judicial review of Constitutional interpretation, but the issue wasn't really settled until Marbury v. Madison. In that case, Justice Marshall made a very clever move. Without going into the details of the case, he actually rule in favor of his political enemies, but at the same time took it upon himself to rule that the Supreme Court had the power to review the Constitutional interpretations of the other branches. Since he ruled in favor of his political opponents, there wasn't much vocal opposition to the ruling on their part.

    Since that time, the court has claimed the power of review, but since it doesn't have the ability to enforce its rulings, it relies on the cooperation of the other branches. So when an issue comes up where the Judiciary and Executive branches are in conflict, the Court will often avoid the issue so as not to make a ruling that might be openly defied by another branch. The court would lose considerable power if such defiance set precedent, so the court will tiptoe around issue.

    There have been times, of course, when another branch, like the Executive, simply tells the court where to go, and the Court can't do much about it. Abraham Lincoln was a good example. Lincoln decided that while Court rulings should generally be binding, there are times when they could be considered 'unsettled' and non-binding. Such times included when the court was divided on an issue, or when he felt there was open partisanship at play, or when the court used "clearly inaccurate" facts at arriving at a decision, or when the court's decision conflicted with the public expectation of the legal role of the branches. As you might imagine, these "exceptions" can easily swallow the rule.

    But Marshall's decision was well-written and well thought out, and has held up all these years. There has never really been an outright, extended challenge to the Supreme Court's authority in this regard.

    One rationale Marshall used was that the Judiciary is inherently the weakest branch, so giving them this power would not likely lead to abuse. Some have countered that today, contrary to when Marbury v. Madison was written, the courts are a much more active vehicle of social change, doing things through rulings that traditionally should be the province of the legislature, and no longer giving appropriate deference to the other branches. Thus, these people argue, it is time to revisit the court's authority to review Constitutional decisions of the other branches.

    There has long been in place a judicially-created doctrine called the Political Question doctrine, where the Court refuses to rule on issues entrusted specifically to another branch by the Constitution. For example, there was a case in the early 1990s where a federal judge was impeached and removed from office. He sued and brought the case to the Supreme Court, saying he was improperly removed. The Supreme Court considered this a "political question" because the Constitution specifically gives to the Senate the Legislative the power to impeach and remove. Therefore the Court refused to review the decision of the legislature. Likewise, when powers are given specifically and exclusively to the Executive branch, the Executive can do what it likes without being reviewed by the Supreme Court.

    Here, we're talking about setting aside Congressional laws. It brings up a very interesting set of issues again, because you have to ask: assuming the separate branches of government are equal, what power (apart from those specifically set forth in the Constitution) does the Legislative branch have to pass laws that bind the Executive? That is, if the legislative branch says "we think the Constitution means X" and the Executive says "We think it means Y," who wins? This isn't settled at all. Unlike the Judiciary, the Legislative has never had the authority to be the final arbiter of Constitutional interpretation.

    There are two ways this should play out: 1) Since the Judiciary is the final arbiter of Constitutional interpretation, when there is a disagreement between the legislative and executive, the case should come before the court, which would then decide who is right. The Supreme Court might tend to stay out of this sort of issue, however, to avoid a constitutional crisis.

    2) The Legislative branch as a whole has a really good check against the Executive - impeachment. So if the Legislative branch feels strongly enough that the President is abusing his power in discarding the laws they've passed, they can impeach the President and remove him from office, and we move forward from there.

    It's a three-way tug of war, and the knot in the rope has moved back and forth ever since the nation was founded.

    Is it "legal" for Bush to do what he's done? That's tough to say. You'd have to look at each case on an individual basis. The Executive branch has a strong argument that the Legislative has no authority over it not specifically granted in the Constitution. Likewise, the Executive has no authority over the Legislative branch not specifically granted. Back when Clinton was President, I said a number of times that he should simply have refused to testify in front of Congress. It was a witchhunt, obviously, but more importantly, what gives the Legislative branch the authority to force the head of the Executive to come in and testify in front of them? Nothing. He should have told them "no thanks." Does the legislative have the power to tell Bush what to do? In large part, no. But if they don't like what he's doing, they do have the power to get rid of him.

  3. Nice post, Scott. Stepping right past Marbury, which has been respected and upheld since the decision, I think at the time the Constitution was established the concept of representation was that the franchised voter selected the Congress, and that, thus, the Congress was the peoples’ representative. The Executive was selected by the Electoral College, and since there was an intermediate step here, the argument can be made that the intent was that the Executive’s powers were far more limited. This theory is supported by a simple reading the document itself. The Legislative branch is established first. Its powers are enumerated first. The Executive branch is enumerated second, and its powers are actually rather circumscribed. One very important factor in any governmental regime is the power of the purse strings. Congress not only is responsible for revenue collection, but also for revenue disbursement.

    The Judicial branch (Supreme Court) was thought to act as a mediator between the two other branches when conflict arose. Theoretically, the Judiciary governs by the sense of logic and morality. It has no inherent enforcement branch to carry weight to its rulings, and depends upon the good faith of the other two branches to compel obedience to its rulings.

    This concept of course falls apart when the other two branches are so obviously corrupt, so completely fueled by malign intent that no “good faith” conduct can be reasonably expected from an decision of the Court that they disagree with.

    In the long run, political power stems from the people. The phrase we use is “consent of the governed.” I submit that until the people stand up and swell into the streets en masse, in such numbers that even our corrupted print and electronic media must take note, nothing will change. But I also think they had damned well better do it before the armed forces return home from their present overseas pursuit of Empire.

    As for the one-war/two-war question, Jeff, it’s two separate wars. Originally, the DoD established one campaign medal for the alleged “GWOT” and there was such an outcry that DoD finally relented and designed a second campaign award.

    ( )

    The issue of retired officers being subject to UCMJ is, I suspect, a strawman. When you retired, did you resign your commission? If not, why not? Tsk. If yer done with a tool, put it away. In response to a previous article Yankee Sailor makes a point about 10 USC 688. This deserves some careful inspection, because it stipulates that how you retired has a lot to do with whether you are subject to the law. (I’m sure you have both your final separation papers and your terminal DD Form 214.)

    The fear of being involuntarily dragged back into service may or may not be valid. I suspect the deciding factors will be your MOS, and last two or 3 duty assignments, length of time retired, and just how much of a thorn in the side they view you to be. If your last several duty assignments were in non-critical slots, and you’ve been in mufti for more than – oh, say maybe 4 years, then the bringing-back-up- to-speed cost/benefit analysis might be moot. Additionally, any deterioration in physical standards, most especially key factors like blood pressure, cardiac efficiency, etc will be a serious bar to further use. Trust me – they do not want to take on board men with conditions that will increase the medical costs of supporting an active duty member.

    Having said all that, do not suppose they are not malign enough to punitively drag a real PITA back into uniform just to f*ck him over.

  4. Lurch:

    Good points. Not only is what you said true, there is further evidence that the Founders didn't care for a strong executive.

    Remember, the States were suspicious of the idea of having a central government. They didn't want it to be very strong. They particularly didn't care for the idea of investing a lot of power in one person.

    Remember that in the Constitution, the manner of selecting electors to vote on President was left specfically to the State Legislatures. They weren't required to hold popular votes and let everyone vote for President, and many did not. The State Legislatures themselves often chose who would receive that State's electoral votes for President. This shows, again, that the States wanted to preserve their own power and were not interested in a heavy-handed executive. If the executive was answerable to State governments, in the form of their legislators, then another check was in place.

    Of course, these days the Federal government as a whole has vastly more power than the framers would ever have wanted it to have, and by and large most people only care about it when the political party they don't like is the one wielding the power.

    But as between the Legislature and Executive, the Legislature was meant to have more power, except when it came to Foreign Affairs, where the Executive really does get quite a bit of authority.

  5. Jeff, I admire you, now say again what base you will be assigned to when you get your recall notice, I want to be able to know where to send the lawyer, I know some good ones, military types. Civilian practice, would love to bite into something like this.

    It really is scary that we now have a DOD and executive branch that is using these type of threat tactics to stiffle dissent from the retired ranks, granted on active duty we all knew where the line was, but we never knowingly abdicated for all time our right to our 1st Admendment rights, only while we were under UCMJ, on ACTIVE DUTY, if people learn that they are always under the governance of the UCMJ after they retire, how many volunteers are they going to have in the future Officer Corp, talk aboout stiffling recruiting that should just about kill it, intelligent men and women will not accept those rules for life.

    This adminstration needs to wake up and smell the coffee, I can see hearings and investiagtions coming to a capitol room near them soon, say January 2007.

    Help a military member and vote Democrat this year, they can't afford two more years of this "regime". I won't make the obvious comparison, but the 4th ****** is awfully near, we need to stop it now, support your military and vote for Democrats in 06.

  6. Thanks Scott for the comment, Scott. Re: your statement "But as between the Legislature and Executive, the Legislature was meant to have more power, except when it came to Foreign Affairs, where the Executive really does get quite a bit of authority.".....

    Where in the Constitution does it say that, please? Which Article? Which section? Is there an ameendment I missed somewhere that disposes of Art 1, Sec 8?

    All I could find was the statement that the Executive may receive ambassadors and appoint same, with the advice and consent of two thirds of the Senate.

    Notice, please - I am not trying to be picky here, neither am I trying to do more than point out that you and I both agree with the drafters of the Constitution, who had suffered under a strong executive and wanted no part of totalitarian government.

    Calssicly, when I studied Con Law way back right after Mr Edison did nis magic with the electric light, the burning question was: "Is it the United States is, or the United States are?"

  7. Hey Lurch...firstly, I found a Federalist Papers passage that also supports our view on the Legislative v. Executive powers:

    "The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.

    On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former." -Federalist No. 48.

    As for foreign affairs - the Founders thought it important that the Union be susceptible to representation by one or a few people presenting a more or less unified face to the world. Thus the executive has the power to receive ambassadors, appoint the same, enter into treaties (that later have to be ratified by the Senate), conduct warfare (once Congress has authorized it). I suppose much of my thinking here comes from cases that have come down over time, and if memory serves there are even portions of the Federalist papers that are directed toward the need to the Executive (and President) being important in the conduct of foreign affairs.

    As for the grammar, I think today "The United States IS" will be much more common than the "United States ARE," but I suspect it was different around the founding of the nation and the latter is technically correct. People like to forget, however, that the States have their own sovereignty. :)

  8. Great post, thank you

  9. Seven of Six9:53 PM

    Well Jeff they went ahead and got the OK from congress to vote on screwing those who get SSDI.

  10. are they going to grandfather the SSD and VA comp issue and just stick it to the "new disabled vets" or are they planning on screwing up family budgets that have house payemnts, car payments and life's expenses set on VA and SSD being paid? Maybe a General can afford to give up his SSD check, but most disabled vets I know can't, does anyone really believe a "totally disabled" vet and his family are over paid getting both checks, is 40,000 or 35,000 a year considered obscene? If this amount is obscene then the payments to 9/11 victims families must be comparable to Exxon's chairmans retirement plan gross excess. Quite a message to our young joing the military become disabled then live like a poor person for the rest of your life, how may are going to be signing up saying me first me first me first, I imagine them saying FU not me first, or even last. Leave it to the Neocons to make the return of the draft a necessity.

  11. Thansk for the reportage on the Federalist Papers. I've felt for over 40 years that there should be more intensive study of them. However, the quotes you supplied did not answer my query to your statement.

    If you recall, you wrote: "But as between the Legislature and Executive, the Legislature was meant to have more power, except when it came to Foreign Affairs, where the Executive really does get quite a bit of authority."

    I asked for the Constititutional reference for that, because I really don't think being able to receive Ambassadors qualifies as having a lot of power in the area of Foreign Affairs. And, when I (as Executive) have to get two-thirds of the Senate to approve my nomination of an ambassador, I still don't see how that gives me a great deal of authority.

    Now, I do grant that having the Secretary of State reporting directly to me is a plus. I can, for instance require him to report to me in writing about what's going on out there. But that Secretary of State had to be approved by the Senate. And they have to approve any monies I wish to spend in the matters of diplomacy.

    And please bear in mind that, as Executive I am required to make periodic reports to the assembled Houses of Congress, representatives of the voters, to give an accounting of what I've done as their employee.

    Really, the way the Constitution was established shows me the Executive was meant to be somewhat of a seat holder.

  12. Lurch:

    The executive certain wasn't treated as merely a seat holder by the early presidents, among whom were drafters of the Constitution. See my response in the other thread. Also, the idea that the Executive is only a seat holder runs counter to the idea of coordinate branches of government, where each provides checks against the other. The executive can't be co-equal or provide checks if it is nothing but a fascade. I don't think that is what was intended.