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The penchant of all too many Americans for indulging
in socially destructive rationalizations and delusions seems limitless. No
sooner had the Internet come alive with warnings about the
implications—if not the specific intent and inevitable consequences—of
National Security Presidential Directive 51 (including my own commentary,
“The Kakistocracy Exposes Its Hand”), than the naive bloggers and
malign agents of influence in the electronic Peanut Gallery began yawning,
“So what?” As they tell it, NSPD-51 is not really anything
new—other Administrations have floated various
“continuity-of-government” plans. NSPD-51 itself promises that
the President will act in accordance with constitutional standards. And,
after all, what else can be done during what NSPD-51 calls a
“[c]atastrophic emergency,” except to turn over control of the
General Government—and, by extension, of American society as a
whole—to a centralized, unitary leadership?
Wrong,
wrong again, and completely wrong.
I.
True enough, former Administrations have devised
“continuity” plans. But those plans arose out of, reflected, and
would have operated in a political context radically different from what
prevails today. Now, Americans are witnessing a political vortex accelerating
before their very eyes: an intensifying consolidation of power in the General
Government, an increasing concentration of that power in the Executive
Branch, and an expanding militarization of that Branch. These developments
manifest themselves not only in hyperbolic, if not utterly hysterical,
official propaganda and agitation saturated with references to an endless
global “war” with “Islamo-fascism,” but also in
actual field operations in which common criminals (so-called
“terrorists”) are verbally transmogrified into “enemy
combatants,” so that they can be denied elementary due process of law,
held incommunicado indefinitely, tortured, and tried before military
juntas—setting perverse precedents for applying such treatment to
common Americans who run afoul of the regime. Worse yet, this agitprop
overflows with appeals to an imagined set of “inherent powers” of
the President, and to his supposedly limitless authority as “Commander
in Chief” in time of “war.”
The
latter legalistic rationalizations amount only to nonsense thrice compounded.
First, under the Constitution, no Branch of the General Government enjoys any
“inherent powers,” but only such powers as the Constitution
delegates. And far from any facile assumption that any power is
“inherent,” “[t]he burden of establishing a delegation of
power * * * is upon those making the claim.” Bute v. Illinois, 333 U.S.
640, 653 (1948). Second, the President is not “Commander in
Chief” of the country as a whole, in the manner of some jack-booted
Fuhrer or opera buffa Duce. Instead, he is “Commander in Chief”
only “of the Army and Navy of the United States, and of the Militia of
the several States, when called into the actual Service of the United
States.” Article II, Section 2, Clause 1. Moreover, even in that
limited capacity, he is subject to the supervening control of Congress, to
which the Constitution delegates the powers “[t]o make Rules for the
Government and Regulation of the land and naval forces,” and
“[t]o provide * * * for governing such Part of the[ Militia] as may be
employed in the Service of the United States.” Article I, Section 8, Clauses
14 and 16. Third, “war” in no way adds to the President’s
powers. Besides enjoying complete authority to provide for governing the Army
and Navy at all times and “the Militia of the several States”
when “employed in the Service of the United States,” Congress
alone has the power “[t]o declare War”—and by necessary
implication, to declare that a “War” being prosecuted must cease,
as well as to determine what is “necessary and proper” in the
conduct of any “War.” Article I, Section 8, Clauses 11 and 18.
And should the President refuse to accede to Congress’s commands,
Congress may remove him from office—including the office of
“Commander in Chief”—through impeachment and conviction.
Article I, Section 2, Clause 5; Article I, Section 3, Clauses 6 and 7; and
Article II, Section 4.
Of
course, the friends of das Fuhrerprinzip (the Leader Principle) are wont to
fall back on the notion that because, in a “[c]atastrophic
emergency,” the President can supposedly declare “martial
law” or suspend the writ of habeas corpus anyway, therefore in even the
most latitudinarian interpretation NSPD-51 amounts to no great accretion to
his powers. The situation is not as simple as these simpletons assume,
however.
The
Constitution does not provide an explicit power for any Branch of the General
Government to declare, recognize, or enforce “martial law.”
Indeed, the Constitution does not even use, let alone define, the term
“martial law.” No doubt, this studied absence reflects the
Founding Fathers’ familiarity and agreement with the warning of their
legal mentor, Sir William Blackstone, that the strictures of “martial
law”
are
to be looked upon only as temporary excrescences bred out of the distemper of
the state, and not as any part of the permanent and perpetual laws of the
kingdom. For martial law, which is built upon no settled principles, but is
entirely arbitrary in it’s decisions, is * * * in truth and reality no
law, but something indulged, rather than allowed as a law: the necessity for
order and discipline in an army is the only thing which can give it
countenance; and therefore it ought not to be permitted in time of peace,
when the * * * courts are open for all persons to receive justice according
to the laws of the land.
Commentaries
on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American
Edition, 1771-1773), Volume 1, at 412.
Furthermore,
and most revealingly, when the Constitution does identify which
“martial” institutions are to exercise the power and duty
“to execute the Laws of the Union, suppress Insurrections, and repel
Invasions,” it explicitly empowers Congress “[t]o provide for
calling forth the Militia,” and “the Militia” only, for
those purposes. Article I, Section 8, Clause 15. Nowhere does the
Constitution assign those tasks in the first instance to “the Army and
Navy of the United States”—a lacuna that could not possibly have
been accidental. So, because the Constitution requires the President to
“take Care that the Laws be faithfully executed” (Article II,
Section 3), and provides for “calling forth the Militia to execute the
Laws of the Union” (as well as to “suppress Insurrections”
and “repel Invasions”), and designates the President as
“Commander in Chief * * * of the Militia, when called into the actual
Service of the United States,” the conclusions are inescapable that:
(i) “the Militia of the several States” are to constitute the
first line of defense in any “[c]atastrophic emergency;” (ii)
Congress, not the President, is to define the circumstances under which the
Militia are to be “call[ed] forth;” and (iii) only if the Militia
prove insufficient to the task are “the Army and Navy of the United
States” to be employed (again, pursuant to ultimate Congressional, not
Presidential, governance and regulation). Given that “martial
law” is (in Blackstone’s trenchant phrase) “in truth and
reality no law” at all; and given that “calling forth the Militia”
is an explicit part and parcel of the supreme law of the land; and given that
“the Militia of the several States,” properly regulated, are to
consist of all able-bodied Americans from 16 to 60 years of age—then
“calling forth the Militia” would differ radically from what most
people imagine that declaring “martial law” would entail.
A
power to suspend the writ of habeas corpus would not amount to full-blown
“martial law,” either. To be sure, as Blackstone taught the
Founders,
confinement
of the person, by secretly hurrying him to goal, where his sufferings are
unknown or forgotten, is * * * a * * * dangerous engine of arbitrary
government. And yet sometimes, when the state is in real danger, even this
may be a necessary measure. But the happiness of [the English] constitution
is, that it is not left to the executive power to determine when the danger
of the state is so great, as to render this measure expedient. For the
parliament only, or legislative power, whenever it sees proper, can authorize
the crown, by suspending the habeas corpus act for a short and limited time,
to imprison suspected persons without giving any reason for so doing.
Commentaries,
Volume 1, at 136.
Following
Blackstone, the Constitution explicitly requires that “[t]he Privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.” Article I,
Section 9, Clause 2. Moreover, this provision not only recognizes
“[t]he Privilege of the Writ of Habeas Corpus” as pre-existing
and therefore independent of the Constitution—by implication, locating
it among the Declaration of Independence’s “certain inalienable Rights,
* * * among [which] are * * * Liberty”—but also defines and
narrowly limits the circumstances under which the writ may be
“suspended.” Not just any conditions of “Rebellion or
Invasion” will suffice, but only those perforce of which “the
public Safety may require it.”
As
Blackstone wrote with respect to the English constitution, so too “the
happiness of” America’s Constitution “is, that [suspension
of the writ] is not left to the executive power to determine.” Because
the Constitution does not include the authority to suspend the writ of habeas
corpus as an enumerated power of the Executive Branch, the President cannot
unilaterally assume that authority through some “directive” such
as NSPD-51, whether in the course of what he claims is a
“[c]atastrophic emergency” or otherwise. Rather, because that
authority appears in Article I, the part of the Constitution that sets out
the powers, disabilities, and duties of the Legislative Branch, only Congress
can determine, through a statute, when it may be “necessary and proper”
to empower the President to take such action. See Article I, Section 8,
Clause 18.
But,
if and when Congress grants such authority, it must also define and limit it,
in keeping with constitutional requirements. Congress must designate what
constitutes “Cases of Rebellion or Invasion,” as those concepts
were understood in the late 1700s. And Congress must provide for, or at a
minimum allow, judicial review so that persons wrongfully confined may still
seek a writ of habeas corpus, requiring the President to prove that any
“suspen[sion]” thereof supposedly applicable to them actually
arose in the context of a true “Case[ ] of Rebellion or
Invasion,” and that “the public Safety * ** require[d] it.”
And if Congress does not provide or allow, or affirmatively attempts to
preclude, judicial review, then the Judiciary must intercede, because
“[t]he Privilege of the Writ of Habeas Corpus” is antecedent to
the Constitution, and can be temporarily “suspended” only in
accordance with constitutional standards.
Obviously,
circumscribed by these constitutional strictures, suspension of “[t]he
Privilege of the Writ of Habeas Corpus” by itself could never
constitute or entail “martial law.”
Morever,
even if the courts were not open because of a “Rebellion or
Invasion”, the Militia could be employed for enforcing the
suspension—for “suppress[ing] Insurrection[s]” and
“repelling Invasion[s]” are among the duties for which the
Militia may be “call[ed] forth”. And, if the courts were open,
suspension of “[t]he Privilege of the Writ of Habeas Corpus”
might be enforced even without employing the Militia, let alone the Army or
Navy.
So
much for the notion that NSPD-51 can be disregarded or excused on the grounds
that a constitutional Presidential dictatorship is already possible under
color of a declaration of “martial law” or a suspension of the
writ of habeas corpus.
Unfortunately,
Americans who do not know even in what century the Civil War was fought (as
to which millions of high-school and college students are ignorant) may have
a difficult time parsing the Constitution on these particulars. Ominously,
too, instead of exposing the errors behind, and denouncing the implications
of, the present rush towards Executive Branch “Decidership,”
influential voices in the self-styled “conservative” media seem
interested more in apologizing for, if not praising and promoting, these
developments, than in recommending and explaining the constitutionally
correct contrary course of action. So, widespread public ignorance and
intellectual apathy, exacerbated by torrents of official propaganda and the
chorus of approval from the present Administration’s toad-eaters in the
media, make this arguably the most politically perilous period in American
history.
II.
NSPD-51 is not simply a continuation of this
downward spiral of political events into History’s toilet, but instead
exacerbates the situation significantly. And this, precisely because NSPD-51
is not in keeping with constitutional standards or safeguards.
NSPD-51
tells America that, from now on, “[e]nduring constitutional government
* * * means a cooperative effort among the executive, legislative, and
judicial branches of the Federal Government, coordinated by the President, as
a matter of comity with respect to the legislative and judicial branches and
with proper respect for the constitutional separation of powers among the
branches, to preserve the constitutional framework under which the Nation is
governed and the capability of all three branches of government to execute
constitutional responsibilities and provide for orderly succession,
appropriate transition of leadership, and interoperability of the National
Essential Functions during a catastrophic emergency”
Edwin
Vieira
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