Sunday, February 05, 2006

The Enabling Acts

The country was torn by political divisions; a dramatic attack on the capitol itself just six days before the elections raised tensions and fears. The President received emergency powers to protect the nation, including the power to suspend civil liberties and habeas corpus; but the government required additional tools for the fight. A new law granted temporary legislative powers to the executive branch. Able to rule by decree, Chancellor Adolf Hitler finally had the authority necessary to save the homeland.

On February 27, 1933, the Reichstag building, the seat of German government, was destroyed by arson. The fire was portrayed as the beginning of a communist revolution. With the fate of the nation at stake, the Enabling Act “to remedy the distress of the people” came to a vote. The Act was a model of concision, less that 250 words long (in English) and complete with a “sunset” provision. Hitler spoke in favor of the measure, promising to use the powers of his position only for vital issues and emphasizing the Christian nature of the German culture. The Act passed by a vote of 441 to 84. Only the Social Democrats voted against it, and they wouldn’t be around much longer anyway.

Of course, no one could have foreseen that the ongoing threats facing Germany would compel two formal extensions of the Act. By then, Hitler’s opponents had been eliminated; and the legislature was a vestigial organ of government. Thus, it was with uncanny prescience that Joseph Goebbels wrote after passage of the Enabling Act:

“The authority of the Führer has now been wholly established. Votes are no longer taken. The Führer decides. All this is going much faster than we had dared to hope.”

In a 1934 speech, Rudolph Hess explained his support for Hitler by declaring that the Führer was “the instrument of the will of a higher power.”

While it is comforting to know that Hitler took power legally and expeditiously, that’s not what I wanted to write about. I had in mind an entirely unrelated topic, a 2001 memo on presidential powers written by then-Deputy Assistant Attorney General John Yoo.

After analyzing the text of the Constitution and the history of relevant cases, Yoo concluded that:

the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001…

Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon…

Furthermore, neither the War Powers Resolution nor the Joint Resolution:

can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make. (Emphasis added.)

In a footnote, Yoo observed that in exercising his military powers:

the President’s decisions are for him alone and are unreviewable.

There it is in a nutshell. This argument, in one form or another, underpins the neo-conservative view of the unitary executive. With no limits on the President’s determinations of the threat or methods of response, and no review possible by Congress or the courts, what can he not do? Jail people indefinitely? Have them tortured? Order searches without warrants? Can he force people into slavery?

And if the war drags on as promised, what will the next Presidents do? On February 2, Donald Rumsfeld delivered a speech before the National Press Club titled “The Long War” in which he explained that the so-called war on terror could last decades. If there are no limits on presidential powers in time of war, and the war goes on indefinitely, isn’t the President effectively a dictator?

Alas, it seems I have digressed again. I actually intended to write about a psychology paper by Florette Cohen and Daniel M. Ogilvie of Rutgers University; Sheldon Solomon of Skidmore College; Jeff Greenberg of the University of Arizona; and Tom Pyszczynski of the University of Colorado at Colorado Springs.

The paper is titled “American Roulette: The Effect of Reminders of Death on Support for George W. Bush in the 2004 Presidential Election.” Commenting on the impact of the bin Laden video which appeared shortly before the 2004 elections, the authors noted that:

From a terror management perspective, the United States’ electorate was exposed to a wide-ranging multidimensional mortality salience induction.

In other words, the voters were reminded that they could be killed. Dick Cheney reiterated the message, implying that his re-election was a critical factor in preventing future terrorist attacks. The authors wrote that:

Allegiance to charismatic leaders may be one particularly effective mode of terror management. In Escape from Freedom, Eric Fromm (1941) proposed that loyalty to charismatic leaders results from a defensive need to feel a part of a larger whole, and surrendering one’s freedom to a larger-than-life leader can serve as a source of self-worth and meaning in life. Ernest Becker (The Denial of Death, 1973) posited that when mainstream worldviews are not serving people’s need for psychological security, concerns about mortality impel people to devote their psychological resources to following charismatic leaders who bolster their self-worth by making them feel that they are valued participants in a great mission to heroically triumph over evil.

Well, that’s exactly what left-wing academics would say, isn’t it? And in any case, another video from Osama bin Laden has been released, promising more attacks. Elections are coming. That should be uppermost in my mind; but for some reason, I’ve been thinking about the Constitution Restoration Act. It would forbid federal court review of certain cases decided by an element of government’s acknowledgment of God as the sovereign source of law.

The idea of criminalizing judicial review is brilliant; and I have no doubt Bush, Jr. would sign the Act if it passed. But it still requires legislators willing to vote for it — courageous men who will dismantle the antiquated system of checks and balances created by our paranoid founders. And we need judges prepared to uphold the Act, at least initially, or submit to it as the case may be — judges with a strong view of broad executive authority. That’s why I sat down to write about neo-con notions of a permanent Republican majority. It’s probably possible with electronic voting machines, but why would they wish such a thing?


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