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My American Friends.

One following your current elections from this side of the Atlantic may be ignorant of the fact that both parties are fighting not only for the presidency, but for control of the House of Representatives and a slither of the Senate. We sometimes forget in the UK that the presidency is not the government and that the legislature is not merely a detail. We continue to regard Congress as an afterthought, rather like the straw in a glass of Coke. It seems not to have occurred to us that Barack Obama’s campaign is so light on policy because an uncooperative legislature will most likely number amongst his victor’s spoils. The 113th Congress is predicted to be bubbling with Republicans.

A majority of Americans seem to concur with our own error in treating their democracy as simply a plebiscitary presidency. Although 41% of eligible adults turned out to vote in 2010, a recent poll put the public’s approval of Congress at 8%. Pollsters will have to knock on a lot of doors before they find a voter who regards their Congress as anything other than the most infernal nuisance.

Whenever an appliance begins to malfunction, it is always best to consult the manual. Unfortunately the American Constitution has been amended twenty seven times, and so it is probably not worthwhile looking to this document for clarity. The Founding Fathers could not trust democracy to behave when they were no longer around to keep an eye on it, and so they made sure to impose a permanent stalemate throughout the American government. Their ideal was not “small government” – America’s government is as gigantically tiered as a wedding cake – but a stupefied or even an essentially incapacitated government.

With their impassioned hatred of democracy, the FFs made it impossible for the elected to exercise any meaningful leadership. There are only two exceptions: when a consensus prevails throughout the ruling class or when the executive exercises powers other than those specified in the Constitution.

When Obama was elected in 2008, he comported himself, at least rhetorically, as a consensus politician. This position was destined to exasperate voters on both the left and right, but it aspired to redefine party politics as irresponsible and obstructionist. Obama pleaded with America not to divide itself into “red states and blue states.” He paid tribute to his Republican predecessor and his appointments were intended to open doors across the political spectrum. Yet inviting congressional leaders to the White House for cocktails was ultimately a courtesy rather than a prelude to policy concessions. We were not over the rainbow and there was no new bipartisan era.

Only three Republicans voted for Obama’s 2009 Recovery Act in the Senate, and voting was on strictly party lines in the House. Not a single Republican voted for Obama’s 2010 healthcare reforms. After the Republicans took the House in the 2010 midterm elections, and Obama was shaken by a vicious congressional battle over the nation’s debt ceiling in 2011, he resolved increasingly to make laws without the legislature. His original campaign slogan of “Yes We Can” was transformed into “We Can’t Wait,” with Congress pointedly excluded from this latest “We.” Obama now allocated funding and implemented an array of policies through executive orders.

It would be worrying if commentators on the left and right were not panicking about the advent of an “imperial presidency,” since a prospective king has been discerned in practically every president. Obama himself has been the subject of a runaway internet hoax, which reports how he has issued 923 executive orders in the first 40 months of his presidency (most of them variations upon the single idea of him confiscating private property). The “imperial presidency” was a phrase coined by the historian Arthur Schlesinger Jr. in the wake of the Watergate scandal (“imperial” here refers to the president colonising powers which are foreign to him in the Constitution), but Franklin Roosevelt’s precedent had effectively rendered such a trend to executive dominance irreversible. No president has seen fit to declare that the state of emergency which had commenced under FDR is finally over.

Compared to his predecessors, Obama appears to have been circumspect in his use of executive orders. Jimmy Carter had issued 320 orders during his presidency, whereas Obama has issued less than half this total. Yet the significance of the executive order is qualitative not quantitative, and Obama’s use of such tactics raises eyebrows because he was previously sceptical of “executive privilege” (but not of executive orders).

All presidents have a far greater scope for unilateral action over foreign policy and homeland security, and their uncontested powers in these domains have rendered America’s head of state an increasingly destabilising influence. It may be hard to discern which is the tail and which the dog: would a purely ceremonial president affect a reduction in US military power, or would a decline in US militarism take the modern presidency with it? Since both ends of the beast are unfortunate, untangling cause and effect is to some degree by the bye.

At home, Obama has allowed the New York Police Department to dip into money allocated for crime prevention to indiscriminately spy upon entire Muslim communities. Overseas, Obama has continued the war against Libya without congressional approval on the grounds that he does not deem it to be a war. Since over a billion dollars of taxpayers’ money have been sprinkled over Libya, Obama’s pocket war has not only defied the War Powers Resolution, which terminates unilateral military action after 60 days, but it clearly violates the constitutional principle that Congress should at least rubberstamp military funding.

After the American Civil War, Justice Davis chided that, “a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.” Obama’s deployment of “drone” assassins represents a nadir in both the constitutional validity of the modern presidency and the moral foundations of our “War of Terror.” As if the extrajudicial executions of those whom the President simply fancies to be “terrorists” were not dire enough, he has stretched far beyond the imagination of George W Bush to apply this preventative “justice” to American citizens.

The death of Abdulrahman al-Aulaqi – who found himself at the receiving end of a CIA drone in Yemen in 2011 – in this respect erects something of a monument. Never mind that America was not at war with Yemen at the time, or that al-Aulaqi had been born in Denver. He was at liberty to be executed without being found guilty by a jury, or indeed a court of any kind. And even a kangaroo court would have given him more than a moment’s notice that he was going to be executed. Obama’s administration eventually admitted that this supposed al-Qaeda operative was only sixteen years old when he was killed.

Obama’s murder of al-Aulaqi could conceivably constitute one of those “high Crimes and Misdemeanors” for which a president can be impeached. Yet Congress has remained huddled behind Obama on the legality of drone strikes. Contrariwise, on one of the few occasions when Congress had shaken off its customary languor, Obama was for once disposed to be doveish. Obama had repeatedly attempted to shut down the Guantanamo Bay torture camp via executive order and presidential memorandum. By 2011, Congress had explicitly denied Obama the funding required to import the hapless detainees to America. Of course, Obama did not wish to squander valuable political capital by challenging their decision.

The difficulty for Obama and Congress alike is that one of them has to run the country. Obama originally surfed to office on a wave of discontent against the Bush administration, but this sentiment would be personified only in a single person. Obamamania would not prove messianic enough to stock the Congress with helpful political disciples. Yet unless there is a crisis in presidential legitimacy similar to that of the Watergate scandal, Congress remains too weak, divided and unpopular to fill the presidential boots. It has proved repeatedly incapable of achieving the hierarchy, discipline and legislative consistency which are needed to work beyond the sum of its exasperatingly disparate parts. If the seal of the United States pronounces “E Pluribus Unum,” Congress can only echo this with Out of Many, Many.

Not even the most righteous critic of the “imperial presidency” could imagine any politician other than Ron Paul freely renouncing the powers available to him under the Constitution. A crime such as extrajudicial assassination is self-evidently unconstitutional, but if the legislature remains unwilling to exercise its checks and balances, then there is effectively no Constitution. Nonetheless something of the Constitution remains not in letter but in spirit. Far from representing an illegitimate “grab” for power, Obama’s current executive actions are upheld by a solid political consensus that the President should assume responsibility for government.

Congress is today comprised of political entrepreneurs who are idealistic only about nurturing their own careers. Paralysed by systematic risk aversion, Congress will only oppose the President when it is politically expedient, with shouts that are really stage whispers. There is not the party solidarity and organisation – across the states and at a national level – for such politicians to implement a legislative agenda of their own. But this was the curse of the Founding Fathers: unless the ruling class, and by implication the entire country, had agreed upon a single course of policy, the alternative would be a governmental living death.

A cynic might scoff that the original sin of a democratically unsound Constitution is today exacting interminable rounds of self-flagellation from its demos. The Republic will forever grieve with a perpetual, impotent despair at the tyranny which provides the only feasible means of sustaining it. An idealist would aver that as long as America retains its freedom of speech and adversarial politics, the nation possesses the capacity to build a progressive consensus – one which any truly democratic president is born to serve.

With best wishes for the future.

Tychy

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