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Show Volume XXII Issue VIII The Ogden Valley news Page 3 April 1, 2014 Guest Commentaries There’s an Alternative to the Imperial Presidency By Lee H. Hamilton In his State of the Union speech to Congress last month, President Obama drew widespread attention for pledging to use his executive authority to advance his priorities. He insisted he intends to act with or without Congress, and listed well over a dozen actions he plans to take by executive order. “Wherever and whenever I can take steps without legislation to expand opportunity for more American families,” he said, “that’s what I’m going to do.” Plenty of people were happy about this. The speech was applauded by pundits who have given up on Congress and believe the only way to move forward is by strengthening the presidency. Our political system, they say, is weighed down by too many interest groups, too many checks and balances, and too few avenues for circumventing a Congress that is both polarized and highly susceptible to the wishes of its donors. The present government is paralyzed, they believe. A stronger presidency would get Washington moving again. As you’d expect, others are alarmed by this approach. The President, they say, is trampling on the constitutional separation of powers, grabbing powers for himself that were meant to be shared with Congress. They point out that the Constitution gives Congress a primary role in making policy. The problem with this debate is that it’s missing a key part of the equation. Yes, our system needs a strong presidency. But it also needs a strong Congress. We are best off as a nation when the two consult, interact, and work together as powerful branches. In truth, every president in recent memory has expanded the power of his office and been accused of a power grab. They’ve had plenty of motivation to do so. The modern world demands quick, decisive action. Americans tend to support presidents who act forcefully. Congress is complex, convoluted, and hard to work with; it is far easier for an administration to act on its own. Even members of Congress often defer to the President, counting on him to address issues they don’t want to tackle or can’t agree upon. And presidents have wielded executive orders to great effect. Abraham Lincoln’s Emancipation Proclamation, FDR’s Works Progress Administration, John Kennedy’s Peace Corps, affirmative action under Kennedy, Lyndon Johnson and Richard Nixon, Ronald Reagan’s enshrining of cost-benefit analysis as the key to regulatory review—all came about through executive orders. Yet there are limits to this approach, because in the end there is no substitute for legislation. Presidents cannot write a budget, raise the minimum wage, or reform entitlements by themselves. Because executive orders lack the permanence and force of law, they can be hard to implement and can be summarily cancelled by a later president. They are more subject to legal challenge than legislation. And most important, executive orders are a unilateral exercise of power and do not benefit from a process of consensus-building and consultation with voices independent of the President’s. Consensus-building can’t happen in a vacuum, however. Without a strong Congress able to find its way effectively through the thickets of lawmaking, this President and his successors will surely continue to address the nation’s challenges on their own. The question is, how far down that road can we go before Congress becomes irrelevant, with too much power — and too much potential for the abuse of power — in presidential hands? Like our founding fathers, we should be skeptical of the concentration of power. Politico recently detailed a spate of executive orders planned by this administration, which would affect everything from how power plants operate to how we commute to how the environment will be regulated. Taken together, they will “push deeply into everyday life” for Americans, the article noted. Whether a president oversteps his authority with these and other executive orders is inevitably colored by whether you agree with the proposed order. But my point is different. It is that the march toward presidential unilateralism, whether the president is a Democrat or a Republican, dangerously undercuts our constitutional system. Before we give up on the separation of powers, let’s try strengthening Congress. This may not be the easy route, but if we don’t take it, representative democracy itself is in doubt. Note: Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years. Now on Facebook you can find information about our educational resources and programs, and you can share your thoughts about Congress, civic education, and the citizen’s role in representative democracy. “Like” us on Facebook at “Center on Congress at Indiana University.” Inspirational Thought “People become really quite remarkable when they start thinking that they can do things. When they believe in themselves they have the first secret of success.” --Norman Vincent Peale Illegal Collection of Personal Data Collection Must Be Stopped Note: This is a letter that was also sent to Senator NSA’s response to be a lie. In March 2012, Rep. Hank Johnson (D-GA) Hatch, Senator Lee, and Congressman Bishop, asked Gen. Alexander, who was under oath, which was signed by about 20 local residents. “What judicial consent is required for NSA Several Americans are very concerned to intercept communications and information about the loss of their privacy and the viola- involving American citizens?” “Within the United States, that would be the tion of the First and Fourth Amendments to our Constitution. The Fourth Amendment guaran- FBI lead,” responded Alexander. “If it were a tees our unalienable right of privacy. It states, foreign actor in the United States, the FBI would “The right of the people to be secure in their still have to lead. It could work that with NSA persons, houses, papers, and effects, against or other intelligence agencies as authorized. But unreasonable searches and seizures, shall not be to conduct that kind of collection in the United violated, and no Warrants shall issue, but upon States it would have to go through a court order, probable cause, supported by Oath or affirma- and the court would have to authorize it. We’re tion, and particularly describing the place to be not authorized to do it, nor do we do it.” This statement was found to be a lie. searched, and the persons or things to be seized.” On March 12, 2013, in a hearing of the The current gathering of electronic data of U.S. citizens does not follow these guidelines Senate Select Committee on Intelligence, Sen. Wyden had this exchange with Director of at all. In 1952, President Truman established the National Intelligence James Clapper, who was NSA. In 1973, the Supreme Court ruled warrants under oath: Wyden: Does the NSA collect any type of were required for domestic intelligence surveillance as required by the Fourth Amendment. data at all on millions or hundreds of millions In 1975, the Senate “Church Committee” of Americans? Clapper: No sir. Investigation uncovered illegal domestic spying Wyden: It does not? by the NSA and recommended reforms. In 1978, Clapper: Not wittingly.” the FISA courts were established, which only gave This we have also found to be a lie. the appearance of legality. These courts were held During this time, numerous “Whistle in secret with no ability from the individual being spied upon, to review or question the FISA court’s Blowers” have risked their careers, coming out decisions. Also, the FISA courts approved surveil- and revealing the unconstitutional abuses. This lance requests almost 100% of the time. After administration has a horrible record in dealing 9-11, domestic spying grew exponentially. By with “Whistle blowers.” Finally, Snowden came the end of 2002, telecommunication companies out last year with his revelations of widespread were turning over records. The Washington Post violations of our Constitution. He left the counrevealed that beginning in 2002, major telecom- try before releasing information and thus could munications companies entered into voluntary not be stopped. The information he has released agreements to give “bulk metadata”—like call- is mind-boggling. It seems that everything done ing information, calling records, and times of electronically or on a computer is being stored in calls—to the NSA. The voluntary agreements large NSA data bases—here in Utah! Even our ended in May 2006 after The New York Times electronic devices and computers are capable of revealed information about the surveillance pro- being used to record or video us unknowingly. I gram. Companies then requested court orders am also very confident we only have part of the from the Foreign Intelligence Surveillance Court information of what is really going on. The FBI is now prosecuting some whistle instead of continuing the voluntary agreement scheme. It was later revealed that CEO’s of these blowers and wants to prosecute Snowden. Yet, companies were threatened to be charged and sent is anyone being prosecuted for lying to congress and the American people? Is anyone being to jail for not complying. Soon, congressmen and senators were ask- prosecuted for violating the Constitution—the ing questions and sending requests for informa- supreme law of the land? We know terrorism to be a threat. Many of tion about these surveillance programs. These requests were often ignored or answered dis- us have served in the military and have seen that threat up close. On September 11, we saw thouhonestly. On August 21, 2013, the Office of the sands die from a terrorist act on American soil. Director of National Intelligence released a But, we have also seen that millions who have FISA court decision detailing NSA’s violation died under totalitarian governments. The loss of so much of our privacy and Constitutional safeof the Fourth Amendment. In July 2011, Senators Ron Wyden (D-OR) guards is leading us to that form of government. and Mark Udall (D-CO) sent a letter to the NSA asking for answers about its collection of data COMMENTARY cont. on page 12 on American citizens. 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