Archive for August, 2017


ap-picture-477The Arpaio pardon could be the beginning of much broader lawlessness under the tacit command of the president. No doubt any others who have committed crimes on Trump’s behalf, or are thinking about it, have taken notice. Immunity might be theirs, too. The real message of the pardon has little to do with Arpaio – it is that the rest of Trump’s team should feel safe ignoring the law so long as they remain personally loyal to the president.

Arpaio and Trump have their own views on what the law should be; that much is legitimate political wrangling. However when law enforcement officers ignore the orders of their superiors in the courts, substitute their own rulings for the judiciary, they subvert the legal system that they have sworn to serve. Officers need not agree with every twist and turn in a legal process, or agree with every legal ruling, but they must always uphold the law. Anything else is lawless thuggery in an official uniform. When it’s run from the top, it’s called dictatorship.

Our Constitution provides only one remedy for a lawless president, but if law enforcement officers choose loyalty to a dazzling leader over their oath to uphold the Constitution, even that remedy may prove inadequate.


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Since the Cold War, Presidents have had the ability to use the nation’s nuclear weapons without prior authorization by Congress.  Current law allows Presidents to shoot first and asks questions later.  This must change.  The time has come to rein in the President’s authority within traditional Constitutional limits by updating the War Powers Resolution.

Current doctrine rests on three assumptions – that unbounded Presidential authority to use the military is necessary for defense (the Necessity assumption), that the Constitution gives Presidents that authority (the Commander in Chief assumption), and that elections will reliably choose Presidents with the judgment, character and wisdom appropriate to such power (the Character assumption).  All three assumptions are false.

Necessity: Rapid military response by a President acting alone would be required in only the most extreme and unlikely scenarios.  The President’s authority to act alone can and should be limited to those situations.  Congress should update the War Powers Resolution to limit Presidential authority to take military action to emergencies in which Congress cannot be consulted, and to require that other senior officials outside of the President’s chain of command concur with the President’s judgement.  An exception should be made in only the most exigent circumstances.

Commander in Chief: Presidential authority to command the military is not absolute.  Military commanders, including the Commander in Chief, are always limited to the lawful use of forces under their command.  As the Constitution puts it, the President’s authority as Commander in Chief applies only “when called into the actual Service of the United States”.  Congress has the sole authority to make war and define the lawful parameters under which the Commander operates.

It has always been so throughout history.   It is the Sovereign power of a country which delegates military authority to Commanders, such as the President; Commanders have no self-authorizing power to make war.  For the United States, the sovereign power to make war is vested solely in Congress.

Character:  Presidential elections sometimes fail to bring us leaders who are widely trusted, both Democrats and Republicans.  At times this has been more obvious, troubling and dangerous.  However well chosen a President may be, it is unwise to delegate too much power to any one person.  We are flawed creatures, and our Constitution was designed to provide a measure of protection from human frailties.

Irresponsible Presidents are a rarity, but we cannot rely on that alone.  We need an updated War Powers Resolution to provide rapid defense in emergencies, but to deny any President the means to start unauthorized war.  Any broader authority subverts the Constitution, and places us all at untenable risk.

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