Profiles in Constitutional Contempt

Dr. James L. Hirsen, J.D., Ph.D

January 11, 2000

NEWSMAX.COM-During the 1970s, when presidential scrutiny was taken seriously, historian Arthur Schlesinger penned the influential work entitled The Imperial Presidency. Time has hastened to fulfill the worst of expectations. Never before has concern over unbridled presidential power been more aptly needed than in reference to the current Washington palace.

The executive branch has been feverishly ambitious over the course of the past few years in the seizure of authority. Presidential action in the form of executive orders and other tangible presidential memoranda has created an illicit reapportionment of power.

Unfortunately, the president's propensity to exert dictums from the oval office has all too often been ignored. When reports do surface in some of our more dominant news outlets, unconstitutional executive activities are frequently depicted as inconsequential.

But such presidential overreach is anything but trivial. When examined in depth, seemingly unrelated news stories surrounding various presidential manipulations take on a noxious form. A pattern is continuing to surface, which reveals the image of a bounty strung together with the baneful thread of indifference for the rule of law.

Events have burst forth from the same unwholesome seed, the debilitating germ of disregard for the integrity and foundational principles of the Constitution. We learn of the consequences of such action, not in the bold headlines, but in the more subtle and obscure musings of the media.

For example, a major in the Air Force who refused to take the anthrax vaccine because of fears that it could jeopardize his health now finds that he is facing a court-martial. Maj. Sonnie Bates, a pilot stationed at Dover Air Force Base in Delaware, is believed to be the highest ranking military officer facing court-martial for failure to follow a direct order and submit to the procedure.

The Defense Department has ordered the anthrax vaccine to be administered to all of the 2.4 million active duty and reserve troops, justifying the course of action through a rationale of protecting members of the armed forces against biological warfare. Pentagon officials admit that more than 200 military personnel have refused to accept the vaccine because of suspected health and safety concerns.

A fact not widely circulated is that the vaccination program was made possible through an executive order. President Clinton signed Executive Order 13139 one day after hearings were held on the subject of distributing the anthrax vaccine to the military.

Through this executive order, the government essentially has the authority to perform medical experimentation on a selected segment of our society. Servicemen and women are being forced to accede to the intake of unapproved drugs, despite the fact that any vaccine not approved by the FDA is illegal and, if somehow administered, would certainly mandate consent of the recipient.

The timing of this executive order is also questionable, since criticism of the anthrax program appeared to have been gaining momentum.

In another duplicitous snatch of power, the president breached his promise to the Senate and flagrantly skirted constitutional proprieties by once again conducting a recess appointment.

During a Senate hiatus, the president is expressly authorized to appoint those vacancies that " ...may happen during the Recess of the Senate." In including these words in the Constitution, the founders clearly intended to provide a procedure by which a transitory presidential assignment could be made, so as to facilitate the continuity of a functioning government.

The process was never meant to be used as a means of thwarting the Senate's approval power, as required by the Constitution. Yet this seems to be the design of choice for our nation's chief executive.

President Clinton had previously agreed to comply with the policy set by prior administrations and provide a list of any prospective appointments to the Senate before a recess occurred. However, his reappointment of Sara Fox to the National Labor Relations Board in December of 1999 was a direct violation of the precedent, and of his own commitment to the Senate.

In a further underreported illustration, Human Rights Watch, a New York based human rights group, is preparing detailed reports to be submitted to the war crimes tribunal in the Hague. The group contends that in prosecuting the war in Kosovo, NATO violated international law.

Examples of some of NATO's international crimes that are earmarked for incorporation into the reports include the deliberate bombing of Serbia's civil infrastructure, the use of cluster bombs, some of which continue to pose a danger, and the targeting of civilian locations such as electrical grids, oil refineries, and radio and television stations. Pressure only grows over time for chief war crimes prosecutor Carla del Ponte to pursue a formal investigation.

The origin of this controversy, once again, is rooted in the Clinton administration's disregard for the rule of law. The president ignored the constitutional mandate for a congressional declaration of war, failed to comply with the War Powers Act of 1973, and issued a host of executive orders in waging this illegal war.

He declared a national emergency and seized the assets of Yugoslavia in U.S. financial institutions, called up the reserves of the military, and declared Kosovo a combat zone. All of these deeds were accomplished through the use of executive orders, with no involvement or suitable participation from our representatives in Congress.

In an additional egregious assault on our revered constitutional compact, the state of Arizona is about to lose the use of some precious land and a chunk of its self-determination in the process. With the memory of the Utah land heist via proclamation still fresh in the minds of informed citizens, we appear to be headed for round two.

It seems that more than 1,500 square miles of Arizona land is now to become the Grand Canyon-Parashant National Monument. President Clinton is tapping into an old statute from 1906 called the Antiquities Act to confiscate large parcels of land.

A monument designation would prohibit mining and could include other restrictions on land use and recreational activities. Arizona officials are making a last-ditch effort to block the move.

All of these executive abuses underscore the important principle that we must constantly persevere in our quest for attainment of the genuine liberty on which our government was established. Recent statements of administration spokespersons, that President Clinton intends to be more contentious in his use of presidential power in his last year of office, must alarm and motivate us all to action.

Despite the image that many in the mainstream press attempt to convey, perhaps at the behest of the administration itself, that President Clinton is a lame duck and can no longer effect substantive change, our civic responsibility compels us to continue to maintain oversight nonetheless.

We must never allow our watchful guard to lapse into complacency, for the impact of illegitimate, expansive executive power is severe, and all too often enduring.

In his farewell address, George Washington said that government was like fire. It is both a dangerous servant and a fearful master. He warned us that, "…never for a moment should it be left to irresponsible action." This advice can be applied equally to individual countries, heads of state, and even would be palaces.

Reproduced with the permission of All rights reserved.