Pro Logica

February 17, 2010

Presidential Prerogatives

Filed under: U. S. Government — Tags: , , — Ron Toczek @ 4:33 am

The February 17 on-line edition of the Washington Post had a guest blogger, Clement Fatovic, who expounded on the concept of presidential prerogatives, gave examples and delved into the thinking of the founders. As interesting as the info was, he did not explain how congressional laws are written so as to give the president leeway in interpreting them nor how the founders have incorporated this concept into the US Constitution for directives not permitted by any specific law or constitutional provision.

For the first case, consider the Reagan directive banning grants to organizations promoting abortions and operating in a foreign country. This directive was rescinded by Clinton, reinstated by Bush and then rescinded by Obama again. What exists are congressional laws giving the president authority to support organizations providing health services in foreign countries without any provision about abortion: hence, by not saying anything about abortion, Congress has given the president unstated authority to implement the law according to his belief about abortion being a health service or not.

Lincoln would be the best example of the second case since he suspended the writ of habeas corpus and instituted a special tax to pay for the war, neither of these acts were constitutionally permitted.  So how was he  able to enforce these directives?

To answer the question we must look at what the Constitution does not say and also at what is does say.  The Constitution does not give any executive authority or legislative authority to the judicial branch; it also does not give any executive authority or judicial authority to the legislative branch except in the sole process of impeachment.  Since the judicial branch never decided a dispute invalidating these directives and since Congress never passed a law denying the president the authority to enforce these directives nor did Congress impeach the president for enforcing these directives, both of these branches tacitly okayed the directives as legitimate.  Since they were rescinded in short order, there was no need for any action by the other two branches.


February 8, 2010

On Supreme Court Rulings, in Particular the McCain-Feingold Controversy

The recent ruling by the Supreme Court on the McCain-Feingold law has stirred up quite some controversy.  Being a five to four decision makes the ruling far from unanimous and very subject to a reversal later.  Before talking about the particulars of this ruling, let’s review some applicable constitutional matters.

Our American Constitution states unequivocally that Congress and only Congress can pass laws for the government of these United States.  There is provision for a Presidential veto and a Congressional override.  It also states that the constitutionally enacted Congressional laws and the Constitution are the “supreme law of the land”  The Supreme Court is given no legislative nor executive power, but has taken the position that it is the supreme arbiter of the constitutionality of Congressional law, a claim nowhere visible among any of the various sections of the Constitution itself.  However, there is a smattering of truth to this claim precisely because of the manner in which the Supreme Court is expected to operate.

Courts, in general, adjudicate disputes, which, for the Supreme Court, primarily means disputes involving the interpretation of the Constitution or its constitutionally enacted laws and/or how a specific interpretation was applied.  There are other disputes that the Court has jurisdiction over but they don’t pertain to the claim under consideration.  Also, we can ignore the Court’s structure since it is the final ruling that matters.  When a particular ruling is made in favor of the party which claims the unconstitutionality of a law, the Court then sets a precedent which will be used as a criteria for other similar cases.  In effect, the Court says that it will render the same ruling in the same circumstances.  The important point to see in this process is that a ruling of this sort made by the Supreme Court is nothing more than a particular interpretation under particular circumstances of the appropriate section(s) of the Constitution.  To jump from a ruling in a dispute to a general claim of unconstitutionality is unjustified because it does not account for subsequent events such as constitutional amendments, Court make-up and judgmental errors of either omission or commission–after all, the ruling is just an interpretation, and like all interpretations, subject to change.

Since the Judicial branch of our government has no legislative or executive authority, a Supreme Court ruling is then nothing more than a request to the president to enforce their ruling and to Congress or a State, if unconstitutionality of a law was in the ruling, to change or delete the law as appropriate, however, these requests can never be mandatory or binding on the other two branches or a State.  There have been very few times when this separation of powers has been invoked and, generally, there are very few reasons not to grant the Supreme Court’s requests.  Overuse of this power could lead to an ineffective government.  Granted, there are those who believe that our government has reached that stage but it still functions pretty smoothly–no revolutions on the horizon.

As I understand it, that part of the McCain-Feingold Act which barred corporations from advertising for any specific candidate in the thirty days prior to an election in which that candidate has been entered is the part which has been ruled unconstitutional on the basis of the 1st Amendment.  Presumably all other campaign contribution laws are unaffected, in particular, it is still illegal for corporations to contribute anything toward any individual’s campaign.  While this is a necessary and good law it can be very difficult to prove that a violation has occurred.  I also understand that the term “corporation” is used to describe any legal entity that is not a person, which, for clarification purposes, I will use the term “corporate entity”.

When our Constitution was written, its writers had as their foundation the Declaration of Independence, the failures of the Articles of Confederation and certainly the actions of the king of England.  The Bill of Rights came directly out of the Declaration but the phrase ” government of the people, by the people and for the people” was nowhere explicitly written into the Constitution nor was there any allusion to the phrase except in the Preamble.  The Preamble is very clear in that the “word” people stands for the entire population governed by our Constitution, from which it follows that any right belonging to the people belongs to any individual person, i.e., human being, who is considered to be one of the people.  It follows that no corporate entity has any rights under the constitution.

Since the 1st Amendment does not use “people” or “person” w.r.g. to “free speech” the SC wrongly concluded that Congress could make no laws restricting corporate entities from exercising free speech.  However, legal corporate entities have  the right to advertise for anything which will be to their benefit, subject only to the advertising marketplace.  This, I believe, is the correct reason for a SC ruling.

Digging into the controversy, democrats seem to be more perturbed than republicans primarily because they believe that the for-profit corporations will preferentially advertise for republican candidates.  Republicans just smile because they think so too, although that remains to be seen.  Remember, corporations are still barred from contributing to the support of any individual candidate so, there can be no collusion between the two, either positive or negative, where by negative I mean that a candidate cannot even hint that he wishes any particular corporation not to advertise on his behalf.  Before placing an ad for a particular candidate, there are corporate concerns to be considered, and for-profit corporations would probably need their owners permission.

I have used the word “corporations” in the above paragraph because that was the term used while this topic was hot, and this approaches another reason for my thinking that the McCain-Feingold Act is unconstitutional.  In the fifth paragraph I have coined the term “corporate entity”.  Explicitly, a corporate entity is any organization with a membership or ownership, official or unofficial, of more than one person and no corporate entity can claim unofficial membership or ownership by all the people of the U. S.  Popular names for corporate entities are “factions” and “special interests”, not so honorable unless you are a member of one.  Some corporate entities are charitable organizations, non-profit and for-profit corporations, unions and political organizations.  My point is that political organizations are permitted to contribute to a candidate’s personal campaign while all the others are barred, very gross discrimination.   Nothing wrong with a political party or a PAC but they should be treated like any other corporate entity–no contributions to any candidate’s personal campaign–thus making any political candidate independent of any and all special interests.

As indicated in the above paragraph, banning any and all contributions by a corporate entity to a candidate’s campaign would be one element in campaign reform. A more important restriction would not allow residents from one state to contribute to a candidate running for Congress in a different state.  Details concerning corporate entities with foreign connections will need to be resolved, stiff penalties for any collusion between a candidate and a corporate entity will have to be set and measures taken that a candidate does not use gifted out-of-state money in his/her campaign.  I don’t suspect that Congress would enact any of these restrictions–they seem to enjoy the current corruption too much.  I do hope that some of the States consider limiting campaign donations for their own states Congressional candidates to their own State’s residents; the other States just might follow suit.  Clearly this particular aspect of reform cannot apply to presidential candidates.

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