Last month, the United States elected a new president. The President-elect will take office – like all presidents since 1937 – on January 20th at 12.00 noon. For most people here and abroad, this election has been full of surprises, not least of all for the president-elect himself. Despite the almost 3 million vote lead for his opponent, the president-elect is put in office by the electoral college. It is done. This system has some fine reasons to keep it in place but that’s another blog another time. For those many people despondent with the results or for those who look forward to the new regime, there are some important things to watch for that should concern all Americans whatever their political persuasion.
Much has been said about the qualifications, intent and general suitability of the president-elect – and people might have some illusions about what the President of the United States can and cannot do. The moniker “the most powerful person on the planet” has developed over time based on US economic power and our foreign affairs footprint in multiple, international alliances. That power belongs to the American people. Though the president can have an impact on these areas, the power of the United States government rests within the Constitution. The president, when he takes office, does not swear to preserve, protect and defend the United States. He swears to preserve, protect and defend the Constitution. We are a nation of laws, not people, and the architects of our system deliberately and purposefully created a government that deprived one person – a quasi king – of absolute power. For these checks and balances to hold – the constitution must be upheld. For the constitution to be upheld, it is important to understand it, particularly where people might chip away at its foundations, because they aspire to their own pretentions and not those of the American people.
The President may not break the law. The President may not make the law. The President must have approval, either congressional or senatorial for actions, appointments, declarations of war or treaties and alliances. The President may not spend federal money on anything without congressional approval. These things might seem like pretty good checks to presidential overreach, but if the president’s party is in power, he might have a broader range – and an abuse of power is less likely to be checked by people who are invested in the same power structure. Here’s where it gets tricky.
The president may through Executive Order exercise temporary and absolute power over a number of areas including creating a new department of the US Government. Congress is then obliged to fund that department, no questions asked. The purpose and the practical reach of that department might only be curbed through the courts, and then only when harm can be shown and that harm can meet the strict requirements of judicial review. Remedy through the courts is, by its nature, always after the fact and often unable to provide a complete fix.
The president may, without congressional oversight, forge unratified agreements with his fellow Heads of State in the form of Executive Agreements. These are not full blown treaties so do not require approval from the senate, nor do they limit the intent of the agreement, though the scope might be considered temporary. Theodore Roosevelt was one of the first to set the precedent for Executive forged Foreign Policy, and if the actions taken can be shown in any way to fall under the mantle of ‘commander-in-chief’, there is almost no way to check them. The president-elect has put into question the whole framework of NATO. Article 5, the corner stone of the treaty, is one that works precisely because it is unconditional and understood to be permanently in effect. With Brexit having weakened the stance of the European Union, a congress of nations that has stayed out of war for 70 years against their true nature, it may be a catastrophic mistake to weaken the NATO alliance at the same time.
Similarly, the president may through the guise of National Security invoke an almost unlimited power, which is granted to him under the ‘preserve, protect and defend’ portion of his oath. Many presidents have wielded special and extraordinary powers in time of war or unrest, so to declare that such a condition exists may provide the president with an insurmountable carte blanche. Famously, President Lincoln used extraordinary war powers, which were much feared to have stretched beyond his mandate. F.D.R along with several wartime presidents – most recently Nixon, Johnson, Bush 43, Obama – have each added multiple layers to this presidential power. It is a grey area of constitutional law as to how far a president is allowed to go, when he claims that he is acting in defense of the nation. By all evidence, in present times and from the historical record, he’s allowed to go as far as he wishes.
Whilst there are laws preventing US officials and private US corporations from financially funding change in foreign countries, there is no law requiring US Officials including The President, Vice-President, Cabinet Members, Secretaries of the major departments, Members of Congress or Judges, to recuse themselves or shift their tactical work because financial dealings before them may or may not personally enrich them. It is considered a distraction or an impediment to their work, since so many cases involving the interests of the United States continually arise. On one level or another US involvement in almost every part of the world is like a moisturizer on skin, often times unnoticed but ever present. Though it seems imprudent in the public eye, it was legal for war torn Iraq to be rebuilt by Vice-President Cheney’s firm Haliburton. It was legal for contributions to be made to the Clinton Foundation from various foreign entities, whether or not there was a solid quid pro quo.
There will be nothing preventing the President-elect from making vast sums of money, if his character and the compliance of his party allow him to do so. The US has never had a billionaire president who also presided over a far-reaching empire of international dealings. Almost all of these dealings will provide financial opportunities for the President that he would not have had in civilian life. How he acts and reacts will be the measure of the man, nothing more. When wise people talk of ‘fitness’ to serve, they are not talking about what a president might do. They are talking of what a president, with good judgement, prudently chooses not to do. The President-elect seems to thrive on the attention of doing things publicly, and for publicity. The presidency is not just the public trappings attributed to it in blockbuster movies. Much of the great office relies on quiet and discerning diplomacy for which there is no recognition. Quiet avoidance of recognition is not part of the record for the president-elect – given the last ten years of evidence – though we might hope to see a change when the gavel drops on January 20th.
The President-elect has begun choosing his cabinet and top posts that will likely trumpet his character and message all over the world. It’s true that some of his picks are unorthodox, but if it’s change people wanted then it’s change people are going to get. However, if the choices are linked in some overt way to imprudent policy that steers the government away from its primary goal of serving the general populace and towards opportunism for the favored few, it should be a point of concern. For example, the path of deregulation should always be a careful tight rope and the President-elect has already promised fast deregulation. If it is for the sake of change – or to personally favour certain individuals who have his ear- it can be extremely dangerous.
We might also be concerned about filling the vacancy on the Supreme Court of the United States. The nominations to the bench often mirror the character and the persuasions of the president who appoints them. The Supreme Court has been in conservative hands for many years now. Some outright partisan tactics have resulted in cases like Citizens United – a decision that allows limitless corporate funding of elections and Bush vs. Gore – a decision that may not have changed the game, but dealt a body blow to the reputation of the court’s impartiality. It is a point of concern that the new president may be able to shift the court’s balance to 7-2 in favour of ultra-conservative issues, because so many justices are of retiring age. Those issues must be weighed and measured, to make sure that they don’t strip the common man of the Constitution’s ‘equal protection’ and don’t frivolously allow political strategy to play out in the law. It should be obvious when the Constitution is under attack and if such measures are being taken there should be a decisive push back from all members of congress who also – like the president – serve under oath to protect it.
The Supreme Court during Bush 43 – showing Justice Souter (standing in position 2), Justice Kennedy (seated in position 5) and Justice John Paul Stevens with his characteristic bow tie (seated in position 2)
Whether it is intended or not, I believe that as justices get older they seem to drift to the political left and to more socially compassionate stances. Kennedy, Souter, John Paul Stevens, all Republican appointees, might be considered in that grouping given the current far right tendencies of their party. They have said as much through their decisions. It is no secret that the great prophet of the Republican establishment, Ronald Reagan, if he were to reemerge as a politician today, would not find a seat at the RNC table. All the current members of the court are fine jurists. Any jibber jabber to the contrary lacks merit. But we should be wary of the appointment of judges with extreme views. This might be a possibility, since the Senate has but to confirm by simple majority. The hope is that the next appointments come from the ‘good jurist’ pile, so that the court will remain well served. We should remember that the current bench, perpetually and publicly castigated for its partisan divisions, agrees upon the law unanimously 80 percent of the time.
There are still those uneasy about the future. The bravura of a conqueror in the President-elect, has allowed for some unabashed behavior whilst engaging in questionable activity. It makes people nervous. Already begun, the slippery slope to nepotism, the unfettered access of those willing to engage in sycophancy or pay their way and the scapegoated press – makes casual observers feel that the whole thing smacks of a banana republic. Not to worry, we still have the great Fourteenth Amendment.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The power packed first section is one of the most authoritative passages of text in the entire constitution. Its purpose was to provide equal privileges and immunities to a whole section of society newly freed from bondage by the Thirteenth Amendment. Today, the word naturalization applies to all immigrants who have ever gained legal access to the United States and grants equal protection of the law and full citizenship to them. By referring to “all persons” the amendment goes beyond slavery to codify the protection of the law to men and women in equal measure, far advanced for 1868. It further makes sure that the whole nation is bound by this federally adopted amendment and cannot supersede it, and that “due process” and “equal protection” are advanced without impediment through State law.
The equal protection clause of the fourteenth amendment, enshrines the rights of immigrants, women, the LGBTQ community, native American-Indians and the African-American, Latino and Asian population and all those other immigrant groups who take their sense of belonging from a pluralistic society – the bedrock of the American dream. All Americans, whether they trace their citizenship back 2 days or 200 years need the fourteenth amendment for their affairs. It is not just the law for the disenfranchised. In the current environment, the constitution must provide us with equal protections, but from the uncurbed influence of the super-powerful, the greed of politicians in league with the powerful, the unchecked tainting of the food supply, the denial of climate change, the threat to the Environmental Protection Agency, the thrust of one religion over another, the thrust of religious ideology and discourse into secular law, the discounting of human conditions, the ‘for profit’ healthcare system, the ‘for profit’ prison system and a range of other problems. The new president may not be the reason for abuses in this direction, but he might become the compliant conduit for them. He may also be an unwitting and compliant conduit in the area of foreign policy.
Lenin – it is attributed – remarked about the political asset of a “useful fool”. Whether Lenin actually coined the term is debatable but his modern successor might just as well be thinking the same thing. There already seems to be a trend towards collusion, with the nomination of a candidate decorated by the Russian government for the job of Secretary of State. As far as Foreign Policy goes, at the State Department, the United Nations or through the watchful directives of the National Security Agency, whatever powers are appointed or rescinded – whilst territorial expansions go unchecked that would return Russia to its USSR footprint – there will be a lot of money to be made – oligarch style – and the President-elect will not be shy about making it.
Similarly, Beijing is testing the waters, waiting for intemperance to unravel the nuanced decade’s old foreign policy between our two countries. One would hope that these tests would be met with deft handling, as they were with George W. Bush in March 2000 – and Barack Obama in 2009, both challenged by naval activity off the Chinese coast. However, this month alone, the terms of the Shanghai communiqué have been shaken by the unwitting acceptance of a phone call from Taipei, the militarized sabre rattling in the South China Sea involving the theft of an American sea drone caused the President-elect to ‘tweet’ complete with trademark misspelling, the manmade islands that China had pledged not to fortify, are now bristling with armaments and the unpredictable regime in the DPRK flexed its nuclear program, for which Chinese intervention is crucial. All this, on the backdrop of unabashed China bating that has been a part of a noisy and provocative campaign make for the perfect storm long before the man has taken office. The new President – once sworn in – has the right to change our foreign policy and our stance on any issue he chooses including, as seems apparent, a reversal of all western nuclear policy. But he would do well to remember that he does not wield power on a whim, as a personal right. The country loans him these four years in office. He is the hired chauffeur, and neither the limousine nor its occupants belong to him.
O Fortuna…egestatem, potestatem dissolvit ut glaciem. Carmina Burana
O Fortune…poverty, power are dissolved (by you) as ice.
As history continually reminds us, we sit atop a great wheel of fortune. Being unduly alarmed when there is drastic change is to unlearn the lessons of time. The whole political circuitry has changed, driving the ‘electoral’ current in the opposite direction. The US is not alone walking into uncharted territory. The bells of dissatisfaction for the status quo are ringing, from Brexit to the recent referendum leading to the resignation of the Prime Minister of Italy. Many other places indicate similar change. The people – like hospital patients lying in one position too long, have simply elected, for comfort and relief, to turn over to the other side. Whether it is medically a healthy decision remains to be seen.
Meanwhile, my warmest wishes for a wonderful holiday season with a Very Merry Christmas and a Happy New Year.