COMMENTARY | COLUMNISTS | ROGER BROWN

About presidents and presidential power

One of my favorite quotes is “The law is politics carried on by other means.” Attributed to many, I found it in graduate school at the end of a law journal article. There is much to be learned from that statement and from two lawsuits recently in the news. Those suits share two qualities. Each says something about leaders while at the same time they are both silly.

This sort of thing is right down my alley.

Some members of Congress are exercised over the president’s exercise of executive power to limit when parts of the Affordable Care Act apply to certain employers. A bill is circulating to sue the president. The mind reels with possibilities.

About the same time, former Panamanian leader Manuel Noriega has sued a video game company for, among other things, harming his reputation. Setting aside whether this is even possible, let’s examine it in search of a connection.

Legal scholars disagree — which is, after all, their job — about the merits of any suit the Congress may bring against the president. Some say it will be thrown out.

Generally, the courts prefer to leave the job of censoring a president to voters with access to a ballot box designed for removing under-performing politicians. So don’t look for the Republicans and the president to show up on “Judge Judy.” You can’t sue the president. The actual reason is because he is a potentate.

Thinking more broadly about how the law is contorted to suit the parochial interests of politicians, if we are truly interested in limiting the power of government, several other causes of action come to mind. There is an Equal Protection Clause in the Constitution. There is also a due process clause. A substantial body of law forbids discrimination.

These are all ignored in the case of “enterprise zones” where two merchants, on opposite sides of the zoning line, are taxed differently. There are many examples of this sort of uneven administration of regulation and other exercises of power. Apparently it is convenient for politicians to use the law to grant economic favors to some and not to others.

Who knew?

Wikipedia reports that in 1989 then President George H. W. Bush removed Noriega because he “posed a threat to U.S. lives and property.” This, despite Panama having its own ballot box of sorts, was a remedy that our president found appropriate. OK, what if Barack Obama’s actions similarly threaten the lives and property of our citizens? Why was Obama not removed in November 2012?

This is not a hard question. By 2012 there were more voters who thought it acceptable to forcibly take from one and give to another than those who did not. Essentially, the majority now approves wealth transfers, by whatever means and in whatever amount, as a way to conduct a civil society.

This mindset, now ossified into our law and culture, has its roots in events nearly a century past. FDR had The New Deal. LBJ had The Great Society. George W. Bush added prescription drug coverage to Medicare.

All of these are mere Robin Hood vote-buying plans corresponding with a steady decline in respect for property rights. Obamacare is just the latest and perhaps the most ambitious of these.

Why should we be surprised?

The interesting question is: What country will find it necessary to remove our leader when we are too weak to act? When will another country decide that our president represents a threat to its lives and property? Perhaps another country that holds a considerable amount of U.S. debt obligations? Let’s see, what country could that be?

Based on what happened in 1989, apparently the rule is: When a country undervalues property rights, it is time for another country to step in and right the ship. One would think this sort of international market discipline would motivate citizens to look after their business in order to remain sovereign.

Are we immune? Not likely. We are either not quite yet a banana republic or just not yet small enough that another country can intervene. It is, however, a comfort to know that we are still such an affluent nation that we can spend time on silly lawsuits, rearranging deck chairs, as it were.

From another great champion of property rights, Mao Zedong, we learned that “Political power grows out of the barrel of a gun.” That is an ominous connection.


Brown is an investor and freelance writer residing in Alpine.

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