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This is entirely new—because, prior to NSPD-51,
“[e]nduring constitutional government,” or any form of
constitutional government in America for that matter, has never been
“coordinated by the President.” Quite the contrary. Heretofore,
although “enduring constitutional government” in the form derived
from the Founders always depended upon a large measure of separation of powers
and checks and balances, if any “coordinat[ion]” beyond what the
Constitution originally supplied became necessary it was the province of
Congress to provide it, through Congress’s exercise of the power
“[t]o make all Laws which shall be necessary and proper for carrying
into Execution * * * all * * * Powers vested by th[e] Constitution in the
Government of the United States, or in any Department or Officer
thereof.” Article I, Section 8, Clause 18. (And if Congress lacked the
requisite power, the Constitution needed amendment. Article V.)
This,
coupled with Congress’s powers to “establish[ ] by Law”
“all other Officers of the United States, whose Appointment are not * *
* otherwise provided for” in the Constitution, to “remove[ ] from
Office on Impeachment * * * and Conviction” “[t]he President,
Vice President, and all civil Officers of the United States,” and to
require that “[t]he Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour” only, and coupled with
the President’s duty to “take Care that the Laws be faithfully
executed”, actually makes America’s “enduring
constitutional government”—as mandated by the
Constitution—one of Legislative, not Executive or Judicial, supremacy.
See Article II, Section 2, Clause 2; Article II, Section 4; Article III,
Section 1; and Article II, Section3.
NSPD-51
purports to turn this constitutional hierarchy upside down, by claiming an
unprecedented power in the Executive Branch to “coordinate[ ]”
“a cooperative effort among the executive, legislative, and judicial
branches.” After all, in common parlance, “to coordinate”
means “to bring about common action.” And “to bring
about” entails more than simply “to suggest” or “to
encourage.” Especially in a “national emergency,” timely
and effective “coordinat[ion]” will tend to pass swiftly and
sequentially from recommendation to direction, from direction to control, and
thence by a short step to dictation. That this is its intention, NSPD-51
candidly admits, in its assertion that “[t]he President shall lead the
activities of the Federal Government for ensuring constitutional
government” (paragraph 6). For if the President “lead[s],”
the other Branches of the General Government must follow.
“[L]ead[ership]” allows for no separation of powers, but demands
the superiority of one Branch over the others—it foresees no checks and
balances among the Branches, but anticipates orders emanating from one that
elicit obedience from the others. And certainly Presidential
“lead[ership]” absolutely excludes Congressional supremacy.
More
than that. NSPD-51 “establishes a comprehensive national policy on the
continuity of Federal Government structures and operations * * * provides
continuity requirements for all executive departments and agencies, and
provides guidance for State, local, territorial, and tribal governments, and
private sector organizations in order to ensure a comprehensive and
integrated national continuity program that will enhance the credibility of
our national security posture and enable a more rapid and effective response
to and recovery from a national emergency” (paragraph (1)).
“Guidance” is the act of “guiding.” And
“guiding” means “to direct, supervise, or influence towards
a particular end.” No doubt, in some instances “influence”
might be exercised through merely hortatory pronouncements. But
“direction” and “supervision” will almost always
entail compulsion. And the more severe the “national emergency”
may be (or may be made to appear to be), the more stringent and coercive the
Presidential “guidance” it will rationalize.
To
be sure, NSPD-51(as quoted above) promises no deviation from basic
constitutional principles. Once again, though, the Great Father in Washington
speaks to his children with a forked tongue. For, under unilateral
Presidential “coordinat[ion],” “lead[ership],” and
“guidance,” who is to say what constitutes “comity with
respect to the legislative and judicial branches” or what amounts to
“proper respect for the constitutional separation of powers among the
branches”? And who is to say whether Presidential
“lead[ership]” in fact “preserve[s] the constitutional
framework under which the Nation is governed and the capability of all three
branches of government to execute constitutional responsibilities”?
Surely the one “coordinat[ing]” and “lead[ing]” must
decide—otherwise, his “coordinat[ion]” and
“lead[ership]” would be open to constant interference, and could
even potentially be nullified, by their subjects. Indeed, under the chaotic
conditions of some “[c]atastrophic emergency,” how would
“the constitutional framework under which the Nation is governed and
the capability of all three branches of government to execute constitutional
responsibilities” be defined, except in accordance with the
“lead[ership]” the President provides?
Of
course, if Presidential “coordinat[ion]”,
“lead[ership],” and “guidance” were the product of
some “Law” enacted by Congress “which shall be necessary
and proper for carrying into Execution * * * the Powers vested by th[e]
Constitution” in the President, and which “Law” the
President were “tak[ing] Care * * * be faithfully executed”, no
constitutional problem would arise. For “the Laws of the United States
which shall be made in Pursuance [of the Constitution]” are part of
“the supreme Law of the Land.” Article VI, Clause 2. NSPD-51 is
not the product of any “Law” enacted by Congress, however. It is
a Presidential “directive.” But the President can exercise no
legislative powers. For “[a]ll legislative Powers * * * granted [in the
Constitution] shall be vested in a Congress of the United States.”
Article I, Section 1. Nonetheless, through NSPD-51, the President purports to
impose on Congress (and on the Judiciary as well) his own unilateral
“coordinat[ion]” and “lead[ership].” The President
presumes to give the “law” to the Nation’s only legitimate
lawgiver.
Thus,
NSPD-51 is not just another familiar, innocuous
“continuity-of-government” plan, but instead contains a veritable
Frankenstein’s formula for centralized, concentrated control of the
General Government as a whole, “State, local, territorial, and tribal
governments, and private sector organizations”—that is, the
entire country—“from the top down,” with all of the levers
of undefined “emergency powers” potentially in the hands of a
single individual. On this canvas the President’s legal brush-wielders
have painted the perfect picture of a Fuhrer state. And the advent of a
Fuhrer state, of course, signals the end of popular self-government, or of
popular government of any kind.
Even
in a Fuhrer state, though, a Fuhrer alone will not suffice. To come to its
full fruition, a Fuhrer state will always require, recruit, and reward a
multitude of amoral, ruthless—and, inevitably,
homicidal—followers zealous to do the Fuhrer’s will, no matter
how perverse it may be. And in a Fuhrer state these operatives, civilian and
military alike, will understand that their positions, powers, privileges, and
possibilities for advancement derive from and depend upon the Fuhrer alone,
and therefore will recognize no authority other than his, and will commit
themselves as loyal and responsible solely to him. (Not for nothing, after
all, was the motto of the most notorious Fuhrer’s SS, “My Loyalty
Is My Honor”.) So, from implementation of NSPD-51 (or future
Presidential “directives” of like ilk that it inevitably will
spawn), Americans can expect a systematic degeneration—indeed, a
progressive “thugification”—of the Executive Branch that
will make the worst of the contemporary rogue agencies of the General
Government appear to be the veriest models of due process by comparison. If
the kakistocracy is bad now, just wait—“you ain’t seen
nothin’ yet”!
III.
What else, though, can be done to protect “the continuity of
government” against true “[c]atastrophic emergenc[ies]”?
A.
Something must be done, and soon, because the
consolidation of a Fuhrer state in America will guarantee that
“[c]atastrophic emergenc[ies]” threatening “the continuity
of government” will occur again and again. Indeed, an entrenched Fuhrer
state will prove itself to be the source and cause of such
“[c]atastrophic emergenc[ies].” For example, the Executive Branch
simply cannot go around the world blustering against, threatening,
subverting, attacking, occupying, and looting other countries and expect
those countries, or their peoples as individuals, not to strike back.
Substituting aggression for diplomacy always incites—and often
justifies—retaliation.
B.
Even less can the Fuhrer state now emerging in this
country persist in its absurd domestic fiscal and monetary policies,
expecting that, when the inevitable financial crisis erupts, tens of millions
of desperate Americans will meekly submit to the orders of a para-military
police-state apparatus that claims to provide them with “homeland
security”even while they are forced to scrounge their daily meals from
garbage cans.
C.
A direction entirely different from that taken in
NSPD-51 must be followed, because the approach that document adopts is thoroughly
unsatisfactory both in practice and in principle.
1. Even
if it were otherwise unobjectionable, a Fuhrer state could never provide true
“continuity of government” in practice.
True
“continuity of government” entails not merely the
“continuity” of the governmental apparatus and the individuals
running it. The General Government is not an institution or entity separate
from and superior to the American people, that serves its own and its
operatives’ interests to the exclusion of the people’s. Rather,
the General Government exists to serve the people, to the exclusion—and
if necessary at the sacrifice—of public officials’ personal
interests. The General Government is only the means; the people are the ends.
As the Preamble to the Constitution emphasizes, We the People’s
“domestic Tranquility,” “common defence,”
“general Welfare,” and “Liberty” are the
consequential matters: their lives, their freedom, their prosperity, their
ability to carry on without fear—especially without fear of their own
public officials.
Doubtlessly,
if Providence arranged for large segments—indeed, the greater
part—of the General Government’s elephantine
“administrative state” to disappear tomorrow, few Americans would
be any worse off, and many would very soon be much better off, than they are
today. Doubtlessly, too, however, if the constitutionally legitimate segments
of the General Government were thrown into discontinuity and disarray by a
“[c]atastrophic emergency,” many common Americans would suffer.
But that means that any proper plan for preserving “the continuity of
government” must look not only to tables of bureaucratic organization
and operation at the upper echelons of the General Government, so as to keep
the really necessary agencies staffed, trained, and supplied, but also and
especially to the means for reestablishing and maintaining the
“continuity” of ordinary Americans’ lives in the face of
any foreseeable national calamity.
Any
truly “[c]atastrophic emergency” will create massive economic and
social dislocations over wide areas, affecting huge numbers of people. To
deal with its effects will require “rational economic
calculation:” that is, identifying and allocating the correct amounts
of scarce resources to mutually competing ends on a timely and efficient basis.
Rational economic calculation under the central bureaucratic planning of a
Fuhrer state, though, is a contradiction in terms. Indeed, even in tranquil
times, let alone in a major “national emergency,” the absence of
free markets for determining the prices of essential goods and services
renders rational economic calculation well-nigh impossible.
In
any “[c]atastrophic emergency,” the fundamental problems will be:
to find out what has gone wrong; to identify what needs to be accomplished in
order to correct the situation; to determine what personnel, equipment, and
other resources are available to do the job; to specify how, when, and by
whom it should be done; and then to perform the necessary work under proper
supervision. This process will require accurate and timely information.
Information that can be gleaned only on the spot. Indeed, information that
will have to be created on the spot by people intimately familiar with the
Local situation. Success in such an endeavor will therefore require
subsidiarity; decentralization of power and responsibility; recruitment,
mobilization, organization, and deployment of forces “from the bottom
up;” and reliance on the common sense and patriotism of ordinary
Americans—to use the constitutional concept, “federalism.”
Not Fuhrerism. In such circumstances, Fuhrerism will prove to be a recipe for
cooking up immediate chaos and serving up ultimate disaster.
2. Even
if “continuity of government” “coordinated by the
President” in the fashion of NSPD-51 might accidentally work in
practice here and there (in the same way that Mussolini made the trains run
on time in Fascist Italy), in political principle it remains undesirable
always and everywhere.
The
process of maintaining “the continuity of government” could prove
to be worse than useless, unless the right people, with the proper
intentions, remained firmly in control of it at all times. For, in the
confusion of a “[c]atastrophic emergency,” those who directed the
process, if their motives were malicious, could avail themselves of the
opportunity in order to transform the government’s very nature in the
guise of maintaining its “continuity.” Under the Constitution, We
the People should control whatever process aims at preserving “the
continuity of government,” because We the People should always remain
responsible for and capable of safeguarding their own government’s
essential nature. That,
after all, is what self-government necessarily entails.
Edwin
Vieira
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