Is Our Democracy at Risk?

In our quest for policies victories are we dooming ourselves?

As I was perusing the daily news catching up on the latest baseball scores and seeing if I won the Mega millions, I came across a story explaining how after Congress’ failure to act on climate change, there were demands that Biden take Executive Action. The Senator from Rhode Island, Sheldon Whitehouse, purportedly a legislator tweeted, “With legislative climate options now closed, it’s time for executive Beast Mode.”.   Well…I asked myself the same question that I ask when most issues like this arise, “What the hell is this?!?

Now for all of you who briefly paid attention during that 2-week time frame in 8th grade social studies when we did the unit on “how a bill becomes a law,” we know that we have created a system enshrined in our Federal and State Constitutions which was designed to enact laws in an orderly deliberative process gaining the approval of our elected legislative and elected executive office holders. As our attention was diverted to the opposite sex, we middle schoolers were comforted with the knowledge that there were restrictions on our leaders (separations of powers- remember that?) such that no one person or group could do anything too bad to us without the concurrence of our elected representatives who promised to care and vigorously protect our freedoms and tax dollars.  However, as I researched the operation of this utopian system of checks and balances and construction of the rules by which over a long period of time, we have agreed to follow, I have discovered that there was this little tiny exception to our well-ordered liberty. What do we do when there is an “emergency?”

Of course, there are situations that have to be handled and could not reasonably go through the deliberative time-consuming legislative process particularly in cases of war and natural disasters to preserve lives and property.  The problem is who gets to decide. Not surprising, President has taken the position that “I get to decide” basing his authority not on any inherent dictatorial powers but in accordance with Article 2, Clause 1 of our Constitution which merely says, “The executive power shall be vested in a President of the United States of America,” and his oath of office, Article 2, Clause 8, where Presidents swear that they will  faithfully execute the Office of President of the United States, and will to the best of (“their”) ability, preserve, protect and defend the Constitution of the United States.  That’s it!! We all hear about these Executive Orders and administrative discretion, and it’s all based on those little words from the 18th century.  The Constitution doesn’t talk about emergencies.  So how did we get in this mess?  I will now take you through the cliff note version of the history of emergency declarations.

Apparently, they didn’t have emergencies in the late 1700s or 1800s since the first and only National Emergency Proclamation was declared by Abraham Lincoln during the Civil War.  Lincoln used his “implicit powers” in Article 2 (see above) to call up 75,000 volunteers for the army, suspend habeas corpus, institute a draft and issue the Emancipation Proclamation. Even back then some complained about honest Abe being a dictator, and in Ex Parte Milligan, the Supreme Court ruled that Lambden Milligan (who was a Copperhead, pain in the ass, who was trying to convince the government to do a deal with the Confederacy and counsel men to avoid the draft) was illegally arrested and detained without charges or trial which violated the right of habeas corpus which was great for constitutional historians but not so hot for Milligan who wasn’t released until 1866 after the war was over.  Well, the war was over, we won, (if “we” are those who pulled for the Union), and the whole issue of unilateral presidential power was shelved for the time being.

The issue didn’t come up again until Woodrow Wilson, a college professor who thought he could run the government all by himself with only the aid of “experts” and who believed that the Constitution was an outdated document for modern governing, made an emergency proclamation in 1917 finding that their weren’t enough ships to transport goods from manufactures, (early 20th century supply chain problems) and essentially put the government in the shipping business all by himself.

In  the 20’s the Presidents generally left the people alone until Franklin Roosevelt was elected in 1932 . Roosevelt issued over 3700 executive orders without any grant of legislative authority in order to solve the depression which he didn’t.  Then the war came, and everyone figured that maybe they did have a real emergency. Congress passed a series of Wars Powers Acts which essentially allowed the President through emergency orders to run America’s manufacturing industries.  It also allowed for wage and price controls, rationing, and a general takeover of society during the war. At least 64 companies had their plants seized by the U.S. government between 1941 and 1945.

Again, we won the war, all was good. Most was forgiven. (Congress did take back the authority to issue wage and price controls, rationing and the general take over of society).  Congress kept passing laws authorizing emergency declarations for this and that until we got to the Watergate era when Congress decided to go back and figure out what they had authorized and clip Nixon and Ford’s wings a little bit. Congress found that there were as many as 500 laws related to declarations of national emergency, with different standards.  As a result, Congress passed the National Emergencies Act for the purpose of cleaning up this mess, which they didn’t.  They did terminate 4 of the emergencies and limited presidential executive authority to “only” 137 areas.  Since 1976, there have been fifty-one National Emergencies proclaimed, of which 32 remain in force.

After Obama lost his majorities in Congress, and Congress wouldn’t pass legislation that he wanted, he gave his famous statement, claiming that he had, “…a pen and a telephone” and he was taking executive action all by himself.  For those few who cared about political power and Constitutional authority, the response was “Say what?” Now look, we all knew there always have been games being played where Presidents tried to expand their power without asking Congress for permission or authority, but no one had ever said publicly, “screw you Congress if I can’t get my way, I will seize power”. (I think the last politician who pulled that stunt before was Charles I in 1643. It didn’t turnout well for him when he had his head chopped off.) Half of America cheered.   

Then Trump came in and, he too thought he could do whatever he wanted without Congressional authority invoking the 1950 National Defense Production Act because Congress did not give him enough money to finish his border wall. Half the country cheered.  He also invoked the National Defense Production Act and the Public Health Service Act to get vaccines developed even though no war was involved except for the “war” on COVID. Just about everyone cheered.  Then the federal government along with the state governments issued their quarantine, mask, and lockdown mandates,  essentially destroying businesses, livelihoods and requiring house arrest. Everyone cheered, for a while. Then fewer cheered, and then after the costs of the business closures, quarantines and masks orders became apparent, only a few cheered. 

Now we have Joe Biden who is being urged to continue and expand on his “emergency powers” to stop global warming …despite Congress’ steadfastly denying that his statutory solutions are ok. The only emergency apparently is that he and his party are not getting their way.  “I worked with Congress to give me the law I want, and since it refused to give me what I want, I will do what I want using my “dictatorial” “oh sorry, my Executive Powers”. ( I made up that quote, but essentially that is what they want him to say.)

Well enough of this fun and mocking of our current leaders.  At this point, as I have diverted you from your daily review of the sports page, the crossword puzzle and new Tik Tok videos, I want to thank you intrepid readers who have kindly tolerated my historical cliff note version of “emergency powers” but are still left with the question: and? And should I care?  Well, I’m getting to that, and I need to get serious.

The founding fathers proposed a heretofore untested radical proposition. Could individuals govern themselves, or because of man’s nature, must they be ruled by strong rulers, Kings, Emperors and now dictators and autocrats?  The Constitution was the American Experiment on self-rule. History and most others at the time concluded that man cannot rule himself. Even Americans were split on the issue which is why George Washington was offered to be the King of America. . The problem with a Monarchy or dictatorships arises that there is no way to peacefully transfer power to opposing forces. It could and has been accomplished through violence. It has been the fate of dynasties and autocratic regimes throughout history. The drafters of our Constitution knew the record but believed that individuals could govern themselves and their communities. However, they also realized that even good men are flawed with an inevitable desire to gather power and seek domination, and the only way to make this experiment succeed was to erect barriers, checks and balances, so that no individual or group of individuals could seize power.

The system of how we pass laws with our checks and balances is the cornerstone on how we protect ourselves against ourselves.  The story of emergency powers above is merely one example of how we have torn away those protections. We make laws slowly obtaining consensus or don’t make laws at all. Emergencies were converted from rare situations requiring action only in the case of war and unavoidable situations that threaten lives and property into a loophole to avoid the hard work of consensus building.  It was a common sense tool designed as an exception and now we claim that everything is an emergency ( or now existential crisis), and we us it as a weapon.

Our Executives: The President, Governors and Mayors have bent the systems that keep their power in check in order to get what they want to accomplish their transformational political and policy goals. They have convinced themselves that their policies and desires are so essential that the systems and culture through which we have operated for over 200 years to resolve conflict are no longer to be respected. The people be damned.

The covenant that was made between the government and the people was that the government could pass laws and in return the people would give up their freedom act and to follow them. However, this was only on the condition that there were checks and balances that protected the people against tyranny. Although most Americans could probably not articulate it, they are becoming aware that the checks and balances have broken, and we are at risk.  We can no longer count on the faithful execution of the laws we have passed. The balance of power is out of balance.  We can all feel that peaceful society is falling apart. For those in the effort to “transform America”, they are also transforming our systems as well. Our culture and what we always have known to be true has been turned on its head.

When the people realize that the delicate balance for the rules of the game for peacefully solving difficult policy issues has changed, they will be free to make their own rules to get what they want, and we cannot control what those rules will be, and they can be ugly. We already are seeing the results of the destruction of our systems of governance, rules of law, and crime and punishment.  They currently burn down cities, loot stores, attack police, defecate in the street, ignore mask mandates, empty the jails, open the borders all without negative consequence. They set up independently governed autonomous zones and homeless camps. they believe it is ok to run from the police, steal without guilt, believing that society owes them what they have stolen.  they no longer work, believing that others should be compelled to take care of them. And leaders and their families who make rules don’t have to follow them.

However, those who are violated and threatened may not quietly accede to their new position as victims.  We will not take the advice from the Minneapolis police department to their citizens that they should just prepare to give up their wallets and phones to those who are robbing them.  We will not disarm to follow the free gun zone policies. If the system can’t or won’t protect us, we will protect ourselves with potentially violent results.

I fear that this warning may be too apocryphal for our readers to appreciate, It can’t really happen, can it? Well, the concept of ruling oneself is still experimental and not guaranteed into perpetuity. As Benjamin Franklin warned at the very beginning, we have a Republic is we can keep it. If we fail to insist on maintaining the pillars that hold up our society, there is no reason that we would not suffer the same fate as that of every other failed democracy, the struggle for personal power, violence and ultimately tyranny.

The seeds of change and revolution are already germinating. and unless we can reimpose restrictions on ourselves to limit our power and recreate trust, there will be no justice, no peace for anyone.