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President Donald Trump signs H.J. Res. 43

Dare We Question the President Trump’s National Security Powers?

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On a number of important national security issues (e.g., securing our borders; strictly enforcing our immigration laws; frankly identifying and on all fronts battling the Islamic Jihadist terrorist threat), candidate Donald Trump came to espouse positions I strongly support, and have supported for decades. Given the depth of experienced expertise on national security issue, among the conservatives who either support or refused to oppose his candidacy, I thought it reasonable to expect that he would assemble a team of people more than competent to deal with the threat we face.

I have more than once decried Barack Obama’s anti-American dereliction when it comes to securing our nation from existential threats, particularly the threat posed by Islamic terrorism. In this respect, however, it is vitally important for our national security officials, including the President, to take their oath of office seriously.  It requires them to uphold the Constitution of the United States. That reflects the assumption that if the Constitution effectively ceases to exist, so does the nation.

The extraordinary measures required to deal with the current Islamic terrorist threat to our national security greatly complexify the task of fulfilling this oath, as war always does. For war inevitably entails a certain measure of dictatorship. America’s founders took this lesson from the analysis of the demise of Ancient Rome’s republican government, provided by political thinkers like Montesquieu and Machiavelli. However, their actions prove that, for those willing patiently to explore it, their analysis also suggests ways to assure that liberty endures, even despite a state of perpetual war.

America’s prevalent founders were willing. The Constitution of the United States allows for the use of executive power, tantamount to dictatorship, but only so long as the people regard the evils it entails as sufferable (as our Declaration of Independence expresses it.)  Meanwhile, our courts of law provide the venue through which individual parties injured by peremptory executive actions, can seek redress, questioning both the Executive’s actions and any laws that authorize them.

But thanks to the separation of powers, the President of the United States is, as a matter of fact free to do what our national security requires (even when courts hold in favor of the complainants,) if the person holding that office conscientiously believes the actions being questioned are indispensable in order to meet a grave and immediate threat to the survival of our nation. However, the President’s freedom in this respect is not Constitutionally unconstrained.

If and when a sufficient proportion of the people reach the conclusion that the claim of dire emergency is being used as an excuse to erect a permanent despotism over them, destroying liberty once and for all, they can remove the offender from office by Constitutional means. However, the process of doing so requires more than a bare majority of the people. Otherwise, what the Declaration refers to as “light and transient” causes would inhibit the President’s ability to secure the nation’s survival when dire emergencies threaten.

All this came to me when I read the following remark from Senior White House advisor Stephen Miller:

We have a judiciary that has taken far too much power and become in many cases a supreme branch of government, the media and the whole world will soon see as we begin to take further actions, that the powers of the President to protect our country are very substantial and will not be questioned.

As Miller puts it, the statement smacks of dictatorial presumption. Given that he is objecting to the judiciary’s presumptuous usurpation of power, it would be tragically ironic for him to assert President power presumptuously. Of course, the President’s use of his national security power will be questioned, repeatedly.  Of course, complainants will resort to the courts to seek redress, and to the streets, too. So long as they do so peaceably, the Constitution makes provision for it.

But the propriety of the President’s use of national security powers has also to be judged in light of the exigencies of the threat we face. It is a judgment only the President can make, in the first instance. But the Judiciary and the Congress are also required to consider it. The Judiciary must do so in order to accord due process of law to complaints raised by parties who profess to be injured by the Executive’s actions, in contravention of the Constitution’s provisions. The Congress must do so in response to complaints from their constituents that the Constitution is not being respected.

But here’s the rub: Emergencies will sometimes require that Constitutional provisions be “honored in the breach”, i.e., consciously set aside in order to prevent intolerable damage to the nation’s life. But the Constitution nowhere formally allows for such breaches; and the Judiciary therefore has no explicit warrant to give them too much leeway. Their judgments should tend strictly to uphold the standard of the Constitution, making sure that it is never simply forgotten. But the people’s representatives in Congress have to act in light of the sovereign material responsibilities they share with the President, on the people’s behalf. In case of emergency this means giving first priority to material security, until the crisis is past, or manageably contained.

This ought to lead to a situation in which the Judiciary more readily insists that Constitutional strictures be carefully respected, while the Executive and the Congress cooperate to make sure everything necessary is done to safeguard the nation. Insofar as the branches disagree about what’s required, it is for the people to judge, acting on their judgment at the polls.  But how can they do so responsibly unless the government’s actions are constantly subject to public scrutiny, with doubts raised and facts examined, so that people have a basis for drawing reasonable conclusions about whether the evils some must suffer are a tolerable response to the exigencies of war; or an intolerable bid permanently to overthrow their liberty?

Given their oaths, all U.S. government officials should strive to help inform the judgment of the people in this regard, insofar as the strategic requirement for secrecy allows. But though, like Christ himself, they may sometimes withhold information for this reason, they should never attack the people’s trust in their government with substantial lies. Instead of asserting that the President “will not be questioned” those who serve him should address questions truthfully, insofar as strategic and operational imperatives allow.

Instead of attacking the Judiciary for according due process to complainants, they should co-operate in the judicial process, implementing judgments in particular cases, except when this comes into conflict with those same strategic and operational imperatives. When it does, they should have taken care to prepare the ground in Congress, so that the President retains the support required to anticipate and allay Congressional concerns, or else deal with them successfully even if they eventuate in impeachment proceedings or trial.

Candidate Trump won the election in part because of his promise to respect the Constitution, and undo the damage inflicted on its authority by Obama’s abuses and derelictions. He cannot fulfill that promise in a hundred days. He only fulfills it every day he and those he has entrusted to help him carry out his duties, do what is necessary to safeguard the Constitution; even as they also do what is necessary to assure the survival of the nation whose life and common purposes it exists to serve.

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