5 Myths Of Constitutional Law

In this era of drones, spying, and Guantanamo, many see the President less as a defender of the Constitution and more as a civil-liberties-thief. But the Constitution in reality gives much more power and authority to the President than the pundits would like to admit.

Myth # 1

Via articles.chicagotribune.com

1. The Constitution demands seperation of powers and the President can never ignore Congress.

We've all heard this: 'Hey! The President can't just pick and choose what he wants to do! He is constitutionally required to seek the approval of Congress before he makes any decisions that could alter the direction of the Republic!'

Some even claim that the office of the President has become an 'Imperial Presidency' whereby the Commander-in-Chief has no one to answer to.

This is kinda accurate, but in reality, the Constitution assigns all of the executive power to the President.

Not most. Not some. But all:

Actuality

The executive Power shall be vested in a President of the United States of America.

This unequivocally and clearly demonstrates that executive Power exclusively belongs to the President. What constitutes executive Power is certainly open to debate, however, any time that we agree as to what exactly defines executive power, we must agree that it belongs to the President.

A clause like this should not cause confusion or uncertainty as to whom executive power is vested. This is not complex. Literally and figuratively, only one person possesses the executive power of the United States. No one else.

Myth #2

Still, some hold steadfast to this belief that the Constitution always requires the President to reach out to Congress for approval, and they deem many executive actions as constitutional overreach.

Specifically, many believe that Congress fundametally deserves some degree of executive privilege and/or oversight (especially when it comes to spying and data).

But wait...that can't be true! Someone has to guard the guards, and someone needs to guard the President--look at Richard Nixon and Watergate!!

Via whitehouse.gov

Actuality:

With regard to domesting spying, wiretapping, etc. Congress constitutionally created what they call Foreign Intelligence Surveillance Courts (FISA courts) to ensure that the government reasonably exercises surveillance.

In other words, Constitution, Arficle I, Section 8, Clause 9 gives Congress the power to establish courts below the Supreme Court:

"To constitute tribunals inferior to the Supreme Court."

Congress has established the FISA courts.

The Fourth Amendment says that the government needs warrants to conduct searches.

FISA courts issue warrants.

There is NOTHING requiring court records to be public information.

Still, many want there to exist independent prosecutors that can jail Executive Branch officials for wrongdoing.

This type of thinking endangers the Republic. The logic of this seemingly obvious idea is bitterly and utterly destroyed in a dissent by Justice Scalia in a case called Morrison v. Olson (1988)

The Bush Administration challenged the very conception of executive oversight as Scalia made a prescient prediction. Background: Congress passed a law that created an independent counsel to investigate legal mishaps in the executive branch. If convicted, Executive officials could go to jail. Everyone on the Court but Scalia said it was cool.

But Scalia argued that criminal prosecution is an exercise of "purely executive power" as guaranteed in the Constitution (you know that whole one person gets the executive privilege I just mentioned)

He also claimed that the law deprived the President of "exclusive control" of that power. Scalia also predicted how the law might be abused in practice, writing, "I fear the Court has permanently encumbered the Republic with an institution that will do it great harm."

Most importantly, he said that the independent counsel would be used as a partisan tool at some point.

He was proven right by that whole Kenneth Starr using 40 million dollars investigating Bill Clinton's sex life.

Via newyorker.com

As Scalia wrote: "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf."

These are the stakes when discussing executive power: constitutional missteps of misunderstandings can unleash a wolf upon the Republic.

FORTUNATELY, the Act expired and is no longer law.

Myth # 3:

Okay Okay, but the current Administration is definitely violating the Constitution with drones! no way that's ok. Especially American citizens!!

Actuality

Via msnbcmedia.msn.com

The President has a constitutional responsibility to protect the Republic, and its basic right to self-defense under international law, as the Justice Department argued in an infamous memo:

"The Administration justifies its fundamental right under both US and international law to defend itself, and long story short, the President must consider at what point the rights of the many become more important than the rights of the few."

What this means: the President does not just casually deem someone an enemy combatant, but it's kinda funny that some people want Americans to trust that their bank deposits will deems says that someone an imminent threat to the United States.

The media simply adores scare tactics, but in truth, either we trust the President to protect the Republic or we don't.

Myth #4:

Via blogger.com

But Wait!!!! There is no way that the Constitution lets the President spy on Americans...no way!

Actuality

Via theatlantic.com

That one depends upon which judges you ask.

One Judge questioned the effectiveness of the government's program, asserting that federal officials did not "cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack." Another judge asserted the exact opposite: "The effectiveness of bulk telephony metadata collection cannot be seriously disputed."

Str8 up facts:

At the end of the day, even though people claim that they have a right to privacy that should prevent the government from accessing data, be it in bulk or individually, everyone forgets that nothing communicated electronically is private in the first place.

Private companies like Verizona, Google, and even Facebook have the ability to view or discern whatever communication that may be.

So...we cannot actually be mad that our information is no longer private, because in many ways, it never really was. But to get mad at the government's knowledge of our technological activity simply means that there is another group of people that has access to our data. Even if you try to say, well, the government could never open our mail and read it...so they shouldn't be able to read our email!

That's the point. No one could read your mail without opening it. At the point at which we know that private companies have access to this information, we have to concede that the information is no longer private.

Myth #5

This is the biggest one of all time: [Insert political issue or Supreme Court decision here] is just as bad as Dred Scott.

In other words, a certain issue will do as much damage to the Republic as the infamous Supreme Court decision Dred Scott v. Sanford (1858) which held that slaves under no circumstances could ever become citizens.

Chief Justice Taney and the majority thought they were preventing the Civil War, but Lincoln capitalized on the contempt for this ruling to win the White House.

Actuality

Dred Scott v. Sandford is the worst Supreme Court decision of all time.

Criticism of Dred Scott is seen largely through a particular constitutional theory, such as strict constructionism--viewing the words with the exact meaning they had when written.

Viewing the decision in this manner is tantamount to using Dred Scott as a partisan tool and these criticisms tell just as much about the quality of the decision as they do about the political agenda of its authors.

These authors, such as Robert Bork seek to use Dred Scott to promote their theory over the others.

We must judge Dred Scott in the context of the qualities that good decisions and bad decisions possess respectively. We must grade it. Only after rigorous analysis can Dred Scott truly give us valuable guidance as the Court moves forward.

Simply put: the grade is an F.

And literally no issue can do worse than Dred Scott unless it really declares slavery constitutional or declares that blacks are no longer citizens.