The following is a cross-posting from The Jacksonian Party.
The following is a personal outlook paper of The Jacksonian Party.
Every four years America gets a look at the political class' aspirants for the office of President of the United States. This office has a heavy load to it for one individual, and has far and wide ranging powers in foreign affairs, military deployments, choosing who will be giving oversight to the federal government and nominating Judges to the federal courts. There is also the power to pardon and the more general 'head of state' concept for all things external to the Nation. These powers are vast, but closely delimited and stringently scoped so as to give the office checks and balances with the other branches of the federal system (Legislative and Judicial), plus requiring some ability to work with the States and address subjects to the People about how government is being run.
Thus, every four years these are not the things that are talked about!
While certain candidates will talk about one thing or another off of the list, very few will tackle the entire concept of the Executive branch in-full. Mostly this is due either to inexperience (even for incumbents there is much that is never learned about the Presidency) or to being familiar with a more limited scope of responsibilities and powers. Those coming from the Legislative branch have some belief they actually know what the Executive power actually *is* but only see it from their legislative perspective, often in the negative and do not realize that there is very little positive on the legislative side for the Executive.
Presidents can, for example, send a budget for the Federal Government to Congress. Congress then, using its authority to start all appropriations in the House, tosses that document to the side and makes up its own budget. That is an over-simplification, of course, and many budgetary items get shifted directly over, but Congress feels impelled to micro-manage by adding staff, items, budget and so on to areas of the government and often removing Executive items. That is part of the job of Congress, but that micro-management outlook means that they are stepping into the Executive area and trying to have a direct hand on the course of government instead of *its* negative duty to stop the Executive from abusing its control. Together these form a shiftless bureaucracy that then plays Executive against Legislative to meet bureaucratic needs set by that bureaucracy, and not by the political will of the Nation via the Executive and Legislative branches.
So, whenever you hear a Presidential candidate put forth that they will 'trim or cut back' government, realize that they have no ability to do so beyond very, very limited terms. That size is set by Congress and the Executive has the job of carrying out the functions of what government is to do and does so within the confines set by the Legislative branch. And as Congress has seen fit to manage all the way down to the individual program level, the actual ability of a President to change outlook within government is encroached upon by the Legislative branch. That is a 'soft' usurpation of power by Congress believing that it can manage government at the finest detail level, while it has no actual capability to do so as management is on the Executive side. By trying to add in more and more organizations for 'oversight', Congress is basically saying: ignore the Executive, do as we say, report to us.
It is in that tension between Executive and Legislative branches that increases 'oversight' but decreases accountability of government to the Executive to report to the American People. Congress does, yeah and verily, point to its role in mandating, funding and obligating the government, but to then try and manage such things via additional organizations with less Executive control and accountability, the Federal structure, internally, is weakened.
The result of that weakening is plain: runaway expenses, programs that cannot be killed, heightening of inter-agency and even intra-agency fighting and turf wars. By creating a Director of National Intelligence, the various parts of existing 'turf' that were threatened then responded by increased intransigence, less cooperation and a feeling that their expertise was being questioned. Well, it was, and for good reason, but the standing up of a wholly separate organization for 'oversight' added a new layer in bureaucracy, added overhead, reduced efficiency, decreased timeliness of information and, generally, made the problem worse.
To get more efficient cross-specialty Intelligence work done, a framework that crosses all of the Intel Community needed to be established that was: organic, cooperative, and shared resources and removed 'turf'. That did not happen, and so the already watered down National Intelligence Estimate now gets further dilution by the DNI. Dots not only don't get connected, they are now further away from each other by the separation of the 'oversight' provided by DNI: to this day there is no organic IC solution that crosses civilian and military needs together into a common IC framework. Oversight has increased, accountability has decreased and what little knowledge there is gets further separated by the higher level of bureaucracy involved.
The Executive power over the Civil Service is limited, with the laws and regulations set up to support the employees over doing a good job. Even at places like the CIA, where your pay grade could vary greatly depending on performance, the actual utility of that didn't allow flexibility in outlook to enter into the place. With mid-1980's predictions the USSR and Soviet Bloc would be around at least until past 2010 and probably past 2030, the actual collapse of it was a stunning slap on the face to the entire IC. No better has been the Dept. of Agriculture in supporting the concept of 'family farms' with payments mandated by Congress going to folks who farm so very little or none at all, that the utility of the Department is called into question.
If you can't support citizen farming could you at least stop supporting Big Agribusiness? Well, not if Congress has a say in that, which it does. Problems in the IRS and FBI with automation, and the inability of either to adapt readily to the modern world, has led to antiquated systems or, even worse, multiple non-integrated systems that house different data sets being unavailable to one person at one place at one time. That is the IC problem, written on the domestic side. And as the system is not set up to change, and is defended by partisans for their 'turf' and budget, the ability *to* change decreases. Firing is a help, but not a remedy so long as the office structures exist across government.
The thing the Executive does have is, in its own way, extremely powerful: mandating work rules, grading systems for work and, at the highest end, the ability to fire the civilian hired interface between Agencies and the rest of government. That last part is a key understanding of the power of the President, beyond just appointing cabinet level officers, judges and such. The hired Senior Service comes on with *contracts*, typically for a base year and up to four option years. A federal government power is the ability to do something with a contract called T4C: Terminate for Convenience of the government.
T4C is the instant firing power the President has over the Senior Executive (or Intelligence) Service. Those individuals tend to be long-term ones, eve with the 1 + 4 arrangement, as they come out of the Civil Service or are brought in from other parts of government or the private sector. In many Agencies the SES/SIS goes down to the Directorate level of government, which is usually a major sub-component of the Agency. The head of a Personnel Directorate would be SES/SIS, and would have senior Civil Service employees as Department heads under the Directorate. In some few Agencies that Department level is becoming an SES/SIS one, which means the direct power of the President reaches very, very far into the government. To express displeasure with an Agency that purposefully will not supply information or offer its obedience to the President, the folks heading up Directorates and on upwards can all be *fired*. This has so rarely been exercised it has almost been forgotten, but the laws of the 1970's make that clear. Such individuals serve at the convenience of the President to help run the Civil Service.
Any President who was *serious* about dissolving an Agency, could tell the SES for it to start the plans to scope it out, what can be dropped completely and what few parts need to go to a different part of government. If the Civil Service will not carry out this task, the President can weight it to be a primary one for all ratings - don't do the work, and your rating drops. Do that for a couple of years and the wheels could be started to actually try and get rid of a civil service employee... don't bet on that, though. Any member of the SES who can't carry out such directives can also be fired via a T4C. In short, no matter what Congress *does*, this is an exercise of Executive Power by the Executive saying: this part of government is useless to the Nation and does not need to exist in the federal government. Getting any work done in such an environment would be difficult, at best, and the more intransigent the civil service gets, the worse in looks. Congress can step in to say *why* it thinks an Agency is needed, mandate it and fund it. The Executive can flip that around and tell such Agencies to demonstrate how little they do for the American People as compared to State or Private concerns, and to be put on life support while the President asks for a plan to dissolve the thing.
I don't hear much about that from candidates on the trail, as they are not *used* to having such power. Very few individuals *are* used to that, and most of those were the business tycoons of the 19th century. Such work can and should spark National debate on the utility and function of such things, beyond the payment transfers that go on... or maybe *because* of such transfers. It is a valid stance for a Presidential candidate to say: 'This boat needs rocking and I intend to rock the excess overboard.'
That is just one of the Head of Government powers the President gets, and it is a tool to enact policy by the elected President upon the government of the People. Congress gets its say for funding and support, but basic needs and oversight is the Executive purview, and calling waste and suspect parts of government into question for dissolving them is a major duty of the President... not that you will ever hear that on the campaign trail, either.
As Head of State, beyond appointing Ambassadors and having the foreign policy of the Nation, outside of Treaty approval and regularization, the President gets a sole power which is another of the negative powers of the Office: revoke a Treaty.
The US is part of the UN... by Treaty.
The US is part of NAFTA... by Treaty.
The US has troops deployed in Germany... by Treaty.
Basically, all of how regular functions of the US with foreign Nations is given by Treaty and then supported by enacting legislation. Remove the Treaty, the legislation goes with it. Presidents can and have removed Treaties from their support, most recently the ABM Treaty, which was seen as a detriment to National Defense, but slews of Treaties with Nations that attacked their own people, went totalitarian or started in on open warfare with its neighbors, have also seen this. Any time you hear anything about problems with foreign Nations with regard to trade, illegal immigration, and terrorism spread to the US, the concept of revoking Treaties is one to express the displeasure of the Executive and change the course of the Nation.
Even if immediately impeached (and this is a purely Executive power properly used) the revocation of the Treaty would still *stand*. To get it back would take a willing President with a Senate able to sign-off on the new agreement, which might take *years* to get back as it is starting from *scratch*. A quick-and-easy 'lets just re-instate it' might work... but with so many treaties having problems to them, particularly trade and immigration, the ability to do that may be limited. It is not the easiest of things to revoke a Treaty that has been in place for decades but once done the change in course is nearly impossible to stop. The power of a Treaty is to add a regular function between Nations and to regularize it on a set framework. Remove that and the benefit to both Nations also goes with it. Often that is seen as no loss and of some gain, particularly if things are not working out so well with a Treaty.
Presidents must look at Treaties and their impact on the Nation and decide the utility of such things. Any Treaty that is abrogated by the other side, or that harmfully affects the Nation with little benefit, or NO benefit, needs to be ended. That is a signature to do so and requires no help from the Senate. Both must agree to get a Treaty in place, but that is not required on the ending side of things as that is a regular power of a Head of State. This is a Law of Nations view and President Washington used just that in The Proclamation of Neutrality, to forbid US Citizens from doing *anything* to contravene his foreign policy. Under force of law. And when it pertains to other Nations at war (even with each other without US involvement) the President has the power to tell the Nation to have NOTHING to do with such things.
This Law of Nations view pre-dates the US Constitution and was incorporated into how England worked not only at the National level but the internal legal level, as well. The United States would form a federal republic which is covered under Law of Nations in Book I, paragraph 10:
§ 10. Of states forming a federal republic.Yes, there were other republics and federal republics before the US and beyond confederation is a strong federation of delegating duties to the federal republic by the States. It is interesting that the concepts from the Declaration of Independence are put forth in Law of Nations, especially not changing the constitution of a nation without great cause and with great caution (paras 32-36). In the US we instantiate the sovereign, or individual leading the Nation, to be the President, although the power division between the President and the Legislature is somewhat differently defined than for other forms of Nation (paras 38-55 and electives states 56-71 ).
Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.
Such were formerly the cities of Greece; such are at present the Seven United Provinces of the Netherlands, (13) and such the members of the Helvetic body.
That is part of the Law of Nations, and the respected differences between Nations is acknowledged while the general outlook of the actual framework of the Laws are respected. Of note for modern times are paragraph 53, on the obedience due a sovereign, and paragraph 54 in what cases they may resist the sovereign. It is a long section (actually in two paragraphs), and puts forth that the actions of a sovereign must be truly odious, of the 'execution unjustly' form of odious not the 'trample on the Constitution but unable to show where and how' form, for such obedience to be resisted. By Book III the right of the sovereign to prevent citizens from taking part in a conflict not of the Nation would be founded. It is of note that it is an explicit view of the sovereign to do that, and President Washington as part of the foreign policy powers exercises that right as Head of State for the Nation. In Book III this is gone over on the question of Neutrality (paras 103-135).
The rights of private persons during time of war are put down in paras 223-232, with 223 reinforcing that citizens may not take up war making on their own, as that is handed only to Nations and the sovereign of a Nation, which President Washington re-iterates on the Neutrality of the US. Foreign recruiters should well be made aware via this that paragraph 15 is also in play, and that those recruiting in the US, when found, are treated thusly: "Foreign recruiters are hanged without mercy, and with great justice." Nor should a citizen join or obey a foreign recruiter in any way, shape or form. This is not only kidnapping, or 'man-stealing', but also a direct contravention of the directive of the sovereign and can, in and of itself, lead directly to war.
That is the power we hand to the federal government and the Executive branch of it: the ability to determine what raises to the level of being something that could involve us in war. When attacked, of course, we are at war with no need to declare it, save as a perfunctory statement (Vattel, Law of Nations, Book III, para 57) to inform the population. In the US system it is only when needing to go on offensive war, or war against enemies that have taken hostile positions and arms or having caused casus belli to us by its actions. In the role of commanding the Armies and the Navies of the Union, the President gains not only the power of field command and disposition of the troops, along with ensuring orderly procedures being followed, but also gains the entire purview over US ships at sea, plus crews.
This is the wartime assurance for US shipping, and neutral shipping to the US, that it shall be unimpeded by war. This is an ancient concept going far beyond the regularized Law of Nations (Vattel, Book I, paras 279-295), and deep into the English common law (as seen in US vs. Wilberger, 1820) all the way to the Black Book of the Admiralty which is a collection of post-Roman trade laws as instantiated in European nations in the 14th century. That power of being the Commander of the Navy allows for such things as piracy to be dealt with along with any external threats to trade for the Nation via the High Seas. Additionally as Commander of the Armies and Head of State, the President gets to set how those overseas activities that are *not* on the high seas, but conducted by means of war are addressed. The Congress may make law on the civil side according to the Law of Nations (US Constitution, Article I, Section 8), but cannot address things outside of the High Seas power (also in Art. I, Section 8) and signed treaties. It may set up justice practices within the Army, but those are only in accordance with regular Nations and treaties, not with those falling outside that framework.
It is this basic dichotomy of power directives that the next President has to deal with and they are ones that have vexed sovereigns back to the 14th century, when parliaments and kings had different areas of concern and the sovereign ruler would see problems outside the realm and other Nations that needed to be dealt with and the parliament would have no ability to enact anything in that realm as it was outside the Nation. Government for a Nation, however, is given the responsibility to protect the Nation and its citizenry first and foremost (Vattel, Law of Nations, Book I, paras 16-21) and to avoid things that would be contrary to that survival (para 22) and then gains the right that derives from the responsibilities to do seek survival and to advance its internal understandings *both* (para 25).
In this era of rights without responsibilities and trying to understand 'why they hate us' we come to a dilemma: a Nation need not care about *why* it is disliked, so long as it is *true to its own nature*. That is the responsibility of government to assure that both can be done simultaneously, and understanding hatred comes a bit after those two things and are not predicated on the understanding first. Even then it is not up to the population to, necessarily, understand 'why someone hates us', but for the government to deal with that. The power of the President in crafting foreign policy is to find a way to enhance the Nation, ensure that it survives and keep us true to our ideals, first and foremost. At no time do we put any other people or Nations ahead of our own needs and outlooks because we would no longer be the United States or *any Nation* if we did that. That is the responsibility given to the President and the rights that grow from that are also in that office.
I am afraid you won't hear much of that on the campaign trail, either.
As of late the right of the other branches of government to impeach a President also comes up, under the high crimes and misdemeanors concept. This, also, is given statement in Law of Nations, with regards to the prince being subject to the law (paras 48-49) and yet the dignity of office making the prince sacred and untouchable (para 50). Yet the population may undo a tyrant (para 51) or seek arbitration with such (para 52). In all cases beyond that, or in which resistance to a barbarous leader (para 54) the public is to show obedience and deference to the orders of that sovereign in his areas of power (para 53). Today we see so many looking at expanding the idea of 'barbarous' and 'tyrant' to include mere political differences, which is not the case with a National sovereign, be he President, King or simple Prime Minister who is also Head of State. A President who shows fidelity to the laws, however, can have indiscretions of them and it is there that we place the Impeachment power, most particularly is paragraph 49 in this instance:
§ 49. In what sense he is subject to the laws.In a federal republic with representative democracy in which a citizen is given the powers of sovereign, we do not see the person of the sovereign as above the civil law, nor is any prince seen likewise - even royalty is accountable to their own law. Civil penal laws, however, of actions by individuals against the individual who is President do have a problem and only for high crimes and misdemeanors should a President be subject to such. The US permits otherwise at its peril, and thus puts pure personal accountability ahead of National needs, when an individual who is President does have a date certain they will no longer be President and such suits may then happen.
But it is necessary to explain this submission of the prince to the laws. First, he ought, as we have just seen, to follow their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, "in his private affairs;" for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of them, whenever natural justice and equity will permit him. Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by his example. But, sixthly, he is certainly above all civil penal laws, The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretence of a fault that does not directly concern the government of the state.
This problem of the Presidency shown up in President Clinton was his perjury in a civil matter which many saw as a prosecution that should not have been happening until after he left office. There were many other, and larger problems that got put aside for this, and while none condone his action, the ability of the court to put the Nation into such peril in the FIRST PLACE was and is questionable. Congress adding on to that did not help things, and even guilty of having done such activity, it should never have arisen in the first place. Unconscionable to commit perjury in a private matter? Yes, and definitely. But that is seen in a different light under the Law of Nations and is to be handled *after* the President leaves office as it is associated with a purely personal matter.
That is part of the distrust of the American Public with its government: the Courts have ruled foolishly, individuals out to seek satisfaction put the Nation at risk and then Congress adds to that by increasing risk either via countenancing such activity or actively aiding it. This is a problem in America and the Nation needs to see that a Chief Law Enforcement Officer will also stick to the laws and enforce them, even upon himself. These, too, trace back to Law of Nations (paras 160-163, 166-170, 173-4, 176) which also includes the sovereign pardon power (173). Causing legal mischief in private concerns with a President should be beyond the pale and a firm stance taken against that by all political factions in the Nation: this puts us all at risk.
And I am pretty certain *this* does not get talked about on the campaign trail, either, especially the use of the pardon power. That has been highly individual to each President, with some dispensing very few and others, apparently, going on sprees to pardon or commute sentences, or even to pre-pardon individuals who may have gotten into trouble.
This upholding of the law is not only the civil law of the US, but our ability to be a sovereign nation and govern ourselves. Citizens have not only the right, but the obligation to uphold their own laws and obey them (Law of Nations Book I, para 30), respect and obey the sovereign who administers the law (para 53), obey the treaties between nations (para 96), work to ensure the prosperity of the nation (para 76, 81, 118) and to love his country (paras 119-120). The sovereign must ensure that the useful arts are protected for the Nation and that there is accord between government and the citizenry on these things. That is the job of any Nation state leader, and falls to the President, also. The power to list those skills necessary for the Nation that we will encourage immigration to the Nation and restrict emigration *from* the Nation also holds true. While Congress holds the immigration to the Nation power, the President oversees the emigration part via passports and such things. In this day and age very few are ever refused passports, but that is the mechanism for the Executive to not only ensure those that may harm other Nations are kept in check, but that those who are of great use to the Nation are retained.
The President gets this from the Head of State and Head of Government power, along with the foreign policy area, but has so become a non-issue in modern America that we may not recognize the right to refuse emigration as one held by the President, and yet that is the case with these cumulative powers.
This is not even a complete listing of the powers the President gets via how nation states work. The Law of Nations set out to regularize that understanding as the ancient civilizations had never done so. By examining all the cases of how a nation works, and properly defining what is held by a nation state and what is *not* and *why*, the founders of the Republic of the United States utilized this framework, along with others so as to create an understanding of what powers rest in government so that the common will of the People could be accurately expressed. These are not the written parts of the Constitution, but the basis for which a Constitution makes sense: without such things as the Law of Nations, understanding of the English common law and how trade developed from the Black Book of the Admiralty and through the Law of Nations, the actual Nation of the United States would not exist.
We live out these ideals and outlooks and yet they are rarely given to us in school or even in advanced studies any more. The modern era takes so much for granted that the concept of a 'post-Westphalian State' is talked about, but it cannot be given meaning as the framework of Nation states by the Law of Nations IS post-Westphalian and developed FROM the Peace of Westphalia. What those talking about a 'post-Westphalian State' are doing are talking about removing the concept of Nation State amongst mankind and imposing something *else* which they dare not define as it would not allow people to secure rights separate from the Nation State. The Law of Nations allows for either view of the source of rights to exist: rights handed down from the State and rights granted to the State by the People. In that flexibility comes wide variation of views and outlooks, so that cultures may find what is best for themselves in governing. It does not ensure liberty or freedom, although that becomes a major point between Nations in their activities, but for the individual it is up to the actual form of government to represent what is needed.
Strange that we will not hear of these basic concepts in times grown rough with outlaws spanning the globe to attack civilization. We need this understanding now more than ever in our history, because such lawless concepts have arisen before and were understood by our very own fore bearers in America. In our ignorance of the past we are dooming ourselves to a less well understood future, and a less safe one. Winning military victories only has meaning if the order and accountability amongst Nations is also restored, and that now slips through our grasp as we cannot figure out how to apply it to ourselves. Because those seeking high office take things for granted and leave unsaid. That, too, is a responsibility of the sovereign of a Nation, as seen in Book I:
§ 111. Instruction.We could use some of this in our views on the sciences to this day, lest we become ignorant of them and enslaved to that ignorance. That does require an understanding of what science *is* and how it functions as a body of knowledge. Unfortunately that is beyond what is spoken of by those seeking higher office and so we now seek ignorance. Because if they don't understand it we will become slaves once more in our ignorance of those things that are worthy of free men to think and speak about. Instead we have a quest for power and that, in the end, will leave us poorer and enslaved to ignorance if not countered.
To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found; that is, in their own perfection, — and to teach them the means of obtaining it. The sovereign cannot, then, take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline. Let us leave a hatred of the sciences to the despotic tyrants of the east: they are afraid of having their people instructed, because they choose to rule over slaves. But though they are obeyed with the most abject submission, they frequently experience the effects of disobedience and revolt. A just and wise prince feels no apprehensions from the light of knowledge: he knows that it is ever advantageous to a good government. If men of learning know that liberty is the natural inheritance of mankind; on the other hand they are more fully sensible than their neighbours, how necessary it is, for their own advantage, that this liberty should be subject to a lawful authority: — incapable of being slaves, they are faithful subjects.
I wonder why that is not talked about on the campaign trail by those seeking such power?