The Ethics of Punching Nazis

[Joe]

Specifically the guidelines I linked to earlier, which you'll recall are authorized by two executive orders that are still in force, apply to all federal agencies including the White House, and provide a right of appeal for revocations.

Understood, but an executive order is an order by the President. It's not an order by a body that has authority over the President. The President has carte blanche to rescind the entirety of an executive order at will - at a moment's notice - by declaration. He can certainly rescind it partially, or as it applies to one person. Executive Orders are directives given by the President to people that work for him - executive agencies - it can provide enforcement guidance, etc. or whatever - but if, say, the Prez issues an order saying "here is how I want job or security evaluations to be handled and the criteria I want applied..." he is not limiting his own Constitutional authority.

From your answer, I'm guessing that you believe the President can revoke Brennan's clearance without the formality of rescinding the authorizing executives orders. Is that correct?

Yes. He can revoke the orders at will. He can revoke part of the order at will. He can make an exception, at will. The order applies to his departments as to how they will review clearances - an executive order does not limit the President's constitutional authority

E.g. - if the President issues an executive order that due to a political dispute going on with the country of Moonbeam, the Department of Homeland Security will no longer issue visas to people from Moonbeam. This is a temporary suspension of all visa processing in the American embassy in Moonbeam, etc. The exceptions are if the applicant presents a formal application for processing with a form that explains undue financial hardship being suffered which meets specified hardship criteria. HOwever, while in negotiations with Moonbeam officials in Oslo, the President meets a Moonbeam scientist who wants to come to the US to help with the new Moon program, and Trump believes that the scientist is the greatest Moon mission scientist ever - really great - nobody better - will get us to the moon really fast - faster than ever - that kind of thing. So, the President calls up the DHS head and says - make it happen - I want Moonbeam admitted. If the only thing standing in the way of Moonbeam's application is the executive order suspending processing, the President can override it - because the President has carte blanche to override his own executive orders.

Okay, if you're willing to indulge me in a hypothetical, let's say the authority for the guidelines is statutory and has been upheld by the Supreme Court as a legitimate exercise of Congress' Article I, Section 8 powers, which doesn't infringe on the President's power as Commander-in-Chief because he still controls who gets clearance.

Would you still support him revoking Brennan's clearance without following the guidelines?

[Forty Two]

Okay, if you're willing to indulge me in a hypothetical, let's say the authority for the guidelines is statutory and has been upheld by the Supreme Court as a legitimate exercise of Congress' Article I, Section 8 powers, which doesn't infringe on the President's power as Commander-in-Chief because he still controls who gets clearance.

Would you still support him revoking Brennan's clearance without following the guidelines?

Well, if "he still controls who gets clearance" then he controls who gets clearance, right?

I think you intended your hypothetical to be that if the law was passed requiring certain processes to be followed for clearance, and which thereby limited the President's authority to give people clearance, then would I think the Prez could break the law? No. I don't. But, that's not the case here.

Let's use a very clear example - Pardons. The Prez has pardon authority for federal crimes. Let's say the congress passes a "process to get a pardon" law, and it specifies that there will be created a Pardon Department and there will be rules for applying for a pardon, what the criteria for granting them will be, etc. The Department starts operating, and the President is following along, pardoning approved people and not pardoning those that don't meet the criteria. One day, an issue comes up where someone was denied, but the President thinks he's deserving. He can pardon the guy outside of the statute. If the rules on Pardons were by executive order - saying DOJ will receive pardon requests as follows - with a specific application form, info given, checks done, verification, etc. -- but then one day the Prez says - I'm pardoning these 10 drug offenders, cuz I want to. He'd be within his rights to ignore the executive order on pardons and do whatever he felt like.

The reason is, that the Constitution supersedes the law and the President's constitutional authority is not limited by Congress (cannot be limited by Congress). Where Congress tries to limit that authority, and the Prez says "fuck you, Congress, don't step on my dick" - we have what's called a "Constitutional Crisis." a dispute over the extent of one co-equal branch's authority as opposed to another.

However, when it comes to the President's authority over Executive Branch's information - it's his baby. There is no argument. Like, the President needs no clearance at all. He can be the most shaky fellow in the world, who would never pass a security clearance -- yet, he can see anything anytime. Why? He's the President. The people running the clearance checks and doling out approvals work for him, not vice versa. He's the one that determines who gets clearance and who doesn't. And, if he wants a close adviser to see secret documents - he doesn't have to ask anyone for permission. If he wants to bar John Brennan or anyone else from accessing info, he can.

[Joe]

Okay, if you're willing to indulge me in a hypothetical, let's say the authority for the guidelines is statutory and has been upheld by the Supreme Court as a legitimate exercise of Congress' Article I, Section 8 powers, which doesn't infringe on the President's power as Commander-in-Chief because he still controls who gets clearance.

Would you still support him revoking Brennan's clearance without following the guidelines?

Well, if "he still controls who gets clearance" then he controls who gets clearance, right?

I think you intended your hypothetical to be that if the law was passed requiring certain processes to be followed for clearance, and which thereby limited the President's authority to give people clearance, then would I think the Prez could break the law? No. I don't. But, that's not the case here.

Let's use a very clear example - Pardons. The Prez has pardon authority for federal crimes. Let's say the congress passes a "process to get a pardon" law, and it specifies that there will be created a Pardon Department and there will be rules for applying for a pardon, what the criteria for granting them will be, etc. The Department starts operating, and the President is following along, pardoning approved people and not pardoning those that don't meet the criteria. One day, an issue comes up where someone was denied, but the President thinks he's deserving. He can pardon the guy outside of the statute. If the rules on Pardons were by executive order - saying DOJ will receive pardon requests as follows - with a specific application form, info given, checks done, verification, etc. -- but then one day the Prez says - I'm pardoning these 10 drug offenders, cuz I want to. He'd be within his rights to ignore the executive order on pardons and do whatever he felt like.

The reason is, that the Constitution supersedes the law and the President's constitutional authority is not limited by Congress (cannot be limited by Congress). Where Congress tries to limit that authority, and the Prez says "fuck you, Congress, don't step on my dick" - we have what's called a "Constitutional Crisis." a dispute over the extent of one co-equal branch's authority as opposed to another.

However, when it comes to the President's authority over Executive Branch's information - it's his baby. There is no argument. Like, the President needs no clearance at all. He can be the most shaky fellow in the world, who would never pass a security clearance -- yet, he can see anything anytime. Why? He's the President. The people running the clearance checks and doling out approvals work for him, not vice versa. He's the one that determines who gets clearance and who doesn't. And, if he wants a close adviser to see secret documents - he doesn't have to ask anyone for permission. If he wants to bar John Brennan or anyone else from accessing info, he can.

I wrote what I intended, but the terminology can be a bit dense, so let me make the hypothetical clearer before we move on.

Congress passed a law saying the President and his people must follow a fair process for clearances, and the Supreme Court said it was constitutional. It didn't change who the President could give it to or take it from, but makes him follow a fair process for everybody. So everything about this example is the same as the last one, except that Congress made the law, not the President.

I think I read you saying the President can skip the process when he wants to, if he made the law, but not if Congress did it.

Is that right?

[Forty Two]

Not exactly. Congress and the President are "coequal" branches of government, so the constitution controls which branch has what power. If the Congress tries to legislate in an article II area that is a power delegated to the President, then the President can ignore Congress. Where there is a dispute as to who has what power, it's called a constitutional crisis because it's kind of like an impasse or a deadlock where there is no real mechanism to resolve the difficulty.

This article in WaPo is decent - https://www.washingtonpost.com/outlook/ ... 98fcfb65be

There is a law, which is Constitutional, passed by Congress that says how clearances are to be granted. However, there is the giant exception -- the President's authority under Article II of the Constitution.

Now, if the SCOTUS accepted certiorari on a security clearance-related case, and didn't abstain under various abstention doctrines, and didn't uphold the President's power, but ruled that the Congressional law prevented the President from using a different procedure or just declaring someone cleared (like what was done with Kushner), then there would be a Constitutional Crisis, because the President would point to his Constitutinoal Power, and the Judicial Branch (which also is not "Above" the President or Congress) has said that the President is limited. The President and Congress would have to figure out a way to resolve the crisis.

[Joe]

I wrote what I intended, but the terminology can be a bit dense, so let me make the hypothetical clearer before we move on.

Congress passed a law saying the President and his people must follow a fair process for clearances, and the Supreme Court said it was constitutional. It didn't change who the President could give it to or take it from, but makes him follow a fair process for everybody. So everything about this example is the same as the last one, except that Congress made the law, not the President.

I think I read you saying the President can skip the process when he wants to, if he made the law, but not if Congress did it.

Is that right?

Not exactly. Congress and the President are "coequal" branches of government, so the constitution controls which branch has what power. If the Congress tries to legislate in an article II area that is a power delegated to the President, then the President can ignore Congress. Where there is a dispute as to who has what power, it's called a constitutional crisis because it's kind of like an impasse or a deadlock where there is no real mechanism to resolve the difficulty.

This article in WaPo is decent - https://www.washingtonpost.com/outlook/ ... 98fcfb65be

There is a law, which is Constitutional, passed by Congress that says how clearances are to be granted. However, there is the giant exception -- the President's authority under Article II of the Constitution.

Now, if the SCOTUS accepted certiorari on a security clearance-related case, and didn't abstain under various abstention doctrines, and didn't uphold the President's power, but ruled that the Congressional law prevented the President from using a different procedure or just declaring someone cleared (like what was done with Kushner), then there would be a Constitutional Crisis, because the President would point to his Constitutinoal Power, and the Judicial Branch (which also is not "Above" the President or Congress) has said that the President is limited. The President and Congress would have to figure out a way to resolve the crisis.

I think you're still not getting me. If Trump skips the defined process for revoking Brennan's clearance, he deprives him of his 5th Amendment right to due process under the law. That's not the issue with Kushner, who went through the process.

Here's what I was asking to refresh your memory.

I wrote what I intended, but the terminology can be a bit dense, so let me make the hypothetical clearer before we move on.

Congress passed a law saying the President and his people must follow a fair process for clearances, and the Supreme Court said it was constitutional. It didn't change who the President could give it to or take it from, but makes him follow a fair process for everybody. So everything about this example is the same as the last one, except that Congress made the law, not the President.

I think I read you saying the President can skip the process when he wants to, if he made the law, but not if Congress did it.

Is that right?

Can Trump skip the legal process for clearances? After all, you said

What do you mean, how do I feel about the rights of Trump critics to free speech and due process? I've been clear on this every time it's come up: Trump critics have every right to say whatever they want about Trump, and they should be afforded the same due process of law as every other citizen. Free speech is an individual right, and justice is individual.

I curious to see what exceptions you make.

[Forty Two]

I already told you what exceptions I make -- the President can give whatever clearances he wants, because the process created by Congress does not supersede the President's constitutional powers.

"Due Process" means the process due in accordance with the constitution.

So, as I said, Congress can pass a law which sets forth the requirements for Executive Branch security clearances, but it's the President's power, not Congress' power, so Congress can't supersede the President - Congress cannot limit the President's powers within Article II, just like the President is not allowed to take or limit Congress' power to make laws within the delegated powers of Article I, Sec. 8.

Let me try to illustrate my point by reversing the roles:

Congress has the power to legislate Copyrights. Congress has the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” So, Congress makes a law that sets forth all the requirements of copyrights, when and by what process you can get a copyright.

The enforcement of the law is the realm of the President, so that's why the Copyright office is part of the Department of State in the Executive Branch. The President, though, decides to just create an Executive Order to say that some things, X, are not copyrightable (even though Congress says they are), and other things, Y, are copyrightable (even though Congress says they are not), and the President adds procedural requirements that slow down the copyright process and limit the ability of applicants to get copyrights.

The President's action there is not appropriate, because Congress makes those rules. The only thing the President can do is enforce the law within the confines of that allowed by Congress. The President cannot rewrite the law, so if someone gets a copyright denied because the President's process is stricter than that set out by Congress, they should win in Court, and the Court should follow the law because the law is above the executive order in that case (due to copyright being an Article 1 section 8 congressional power).

So, now flip it back around to pardons - there the power is Executive. The President has the power assigned by Article II section 8. Let's say Congress makes a "Presidential Pardons Act" which sets forth a process for applying for pardons, criteria for getting them, and all that, and that law is made applicable to the Department of Pardons. Even though there is a legal process passed by Congress, the President does not have to follow it, because Congress has no power to limit or control the Constitutional authority of the President.

So - clearances - clearances fall within the same purview as the pardons. The Supreme Court has ruled in United States Navy v Egan that the President's power over security clearances is part of his constitutional authority as Commander-in-Chief and "exists quite apart from any explicit congressional grant." So, when Congress tries to legislate in that area, it cannot limit the President's power.

[Joe]

I already told you what exceptions I make -- the President can give whatever clearances he wants, because the process created by Congress does not supersede the President's constitutional powers.

"Due Process" means the process due in accordance with the constitution.

So, as I said, Congress can pass a law which sets forth the requirements for Executive Branch security clearances, but it's the President's power, not Congress' power, so Congress can't supersede the President - Congress cannot limit the President's powers within Article II, just like the President is not allowed to take or limit Congress' power to make laws within the delegated powers of Article I, Sec. 8.

Let me try to illustrate my point by reversing the roles:

Congress has the power to legislate Copyrights. Congress has the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” So, Congress makes a law that sets forth all the requirements of copyrights, when and by what process you can get a copyright.

The enforcement of the law is the realm of the President, so that's why the Copyright office is part of the Department of State in the Executive Branch. The President, though, decides to just create an Executive Order to say that some things, X, are not copyrightable (even though Congress says they are), and other things, Y, are copyrightable (even though Congress says they are not), and the President adds procedural requirements that slow down the copyright process and limit the ability of applicants to get copyrights.

The President's action there is not appropriate, because Congress makes those rules. The only thing the President can do is enforce the law within the confines of that allowed by Congress. The President cannot rewrite the law, so if someone gets a copyright denied because the President's process is stricter than that set out by Congress, they should win in Court, and the Court should follow the law because the law is above the executive order in that case (due to copyright being an Article 1 section 8 congressional power).

So, now flip it back around to pardons - there the power is Executive. The President has the power assigned by Article II section 8. Let's say Congress makes a "Presidential Pardons Act" which sets forth a process for applying for pardons, criteria for getting them, and all that, and that law is made applicable to the Department of Pardons. Even though there is a legal process passed by Congress, the President does not have to follow it, because Congress has no power to limit or control the Constitutional authority of the President.

So - clearances - clearances fall within the same purview as the pardons. The Supreme Court has ruled in United States Navy v Egan that the President's power over security clearances is part of his constitutional authority as Commander-in-Chief and "exists quite apart from any explicit congressional grant." So, when Congress tries to legislate in that area, it cannot limit the President's power.

I get that, but I'm not talking about Congressional limits on Presidential power. What happens when the President's Article II power comes into conflict with someone's individual rights under the Bill of Rights?

Navy v Egan doesn't address this.

For reference, procedural due process is defined as:

[Forty Two]

I get that, but I'm not talking about Congressional limits on Presidential power. What happens when the President's Article II power comes into conflict with someone's individual rights under the Bill of Rights?

Navy v Egan doesn't address this.

For reference, procedural due process is defined as:

There is no hearing required for pardons, for example, or for the President to issue security clearances. Congress cannot set the "process" required by the constitution by virtue of a legislative act. It would have to amend the Constitution to add something to that.

You have, though, hit upon the one area where there is a crack - does the Fifth Amendment due process clause require the President to afford notice and opportunity to be heard before revoking someone's security clearance? Does the revocation of security clearance constitute deprivation of life, liberty or property? Certainly not life or liberty - maybe property? It's not really "property" - it's more of an "eligibility for access." Also, the courts generally say they will not get involved in security clearance issues because of US Navy v Egan. So, it's not clear a court would even decide the issue.

I know of no case where the President has been required to afford notice and hearings before denying people pardons, for example. I tend to think that there isn't anyone that will be able to limit the power grant, deny or revoke security clearances. I mean, the President has no limit to his own security clearance, and he can let anyone he wants to see secret info - he's the President - it's his policy - it's his information - it's executive department information (the rest of the executive branch acts through him). So, well, you make a good point, but I think the Constitution affords him the power to do it. https://www.washingtonpost.com/outlook/ ... 138adde968

[Joe]

I get that, but I'm not talking about Congressional limits on Presidential power. What happens when the President's Article II power comes into conflict with someone's individual rights under the Bill of Rights?

Navy v Egan doesn't address this.

For reference, procedural due process is defined as:

There is no hearing required for pardons, for example, or for the President to issue security clearances. Congress cannot set the "process" required by the constitution by virtue of a legislative act. It would have to amend the Constitution to add something to that.

You have, though, hit upon the one area where there is a crack - does the Fifth Amendment due process clause require the President to afford notice and opportunity to be heard before revoking someone's security clearance? Does the revocation of security clearance constitute deprivation of life, liberty or property? Certainly not life or liberty - maybe property? It's not really "property" - it's more of an "eligibility for access." Also, the courts generally say they will not get involved in security clearance issues because of US Navy v Egan. So, it's not clear a court would even decide the issue.

I know of no case where the President has been required to afford notice and hearings before denying people pardons, for example. I tend to think that there isn't anyone that will be able to limit the power grant, deny or revoke security clearances. I mean, the President has no limit to his own security clearance, and he can let anyone he wants to see secret info - he's the President - it's his policy - it's his information - it's executive department information (the rest of the executive branch acts through him). So, well, you make a good point, but I think the Constitution affords him the power to do it. https://www.washingtonpost.com/outlook/ ... 138adde968

Okay, I'll take that as an answer to my original question.

You have some unusual ideas about the separation of powers, but you're not alone in those views. I read something a while back that attributed the growing tolerance for unchecked Executive power to be related to the fading memory of the power FDR amassed in his long Presidency, with the crises of Depression and the second World War, that so concerned his contemporaries as to make Presidential term limits attractive.

Personally, I think 9/11 played a part too.

[Brian Peacock]

[Joe]

Wow, Jacob Rees-Mogg does look like a drowned Harry Potter.

[pErvinalia]

"If we call everyone Nazis we'll have to come up with another term for the actual Nazis".

[Animavore]

[Forty Two]

Okay, I'll take that as an answer to my original question.

You have some unusual ideas about the separation of powers, but you're not alone in those views. I read something a while back that attributed the growing tolerance for unchecked Executive power to be related to the fading memory of the power FDR amassed in his long Presidency, with the crises of Depression and the second World War, that so concerned his contemporaries as to make Presidential term limits attractive.

Personally, I think 9/11 played a part too.

My ideas are not unusual. I have sourced them. You haven't sourced anything that suggests otherwise.

I'm also not talking about "unchecked" power. Separation of powers is separation of powers. The President can't make laws or "check" congress's power to make laws in Article 1 section 8. The way the President checks congress' power to legislate is in the President's manner of enforcing those laws. The President cannot judge cases, that's the judiciary branch. Likewise, the court can't pardon or declare people unpardonable and neither can congress. Those powers are allocated to the various branches of government. None of the three branches is above another.

[Joe]

Okay, I'll take that as an answer to my original question.

You have some unusual ideas about the separation of powers, but you're not alone in those views. I read something a while back that attributed the growing tolerance for unchecked Executive power to be related to the fading memory of the power FDR amassed in his long Presidency, with the crises of Depression and the second World War, that so concerned his contemporaries as to make Presidential term limits attractive.

Personally, I think 9/11 played a part too.

My ideas are not unusual. I have sourced them. You haven't sourced anything that suggests otherwise.

I'm also not talking about "unchecked" power. Separation of powers is separation of powers. The President can't make laws or "check" congress's power to make laws in Article 1 section 8. The way the President checks congress' power to legislate is in the President's manner of enforcing those laws. The President cannot judge cases, that's the judiciary branch. Likewise, the court can't pardon or declare people unpardonable and neither can congress. Those powers are allocated to the various branches of government. None of the three branches is above another.

Given it took a week to get you to answer my question, I ignored the separation of powers stuff, since it was off topic, I'd heard it before, and I was more interested in how far your defense of speech and due process rights went. Thanks for indulging me on the hypotheticals.

As for separation of powers, I think you may need to study on it some more. The President's primary check on the legislative power of Congress is the veto. It amuses me greatly that you don't know this, but it demonstrates how unusual your ideas are, and I hope my sourcing is adequate for your understanding.

Let me try and further your understanding by sharing a source I think is a worthwhile foundation for considering the relationship between Congress and the Executive.

The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

You don't have to agree with it Forty Two, but as you said, "the ability to entertain a notion without accepting it is the beginning of wisdom," and I think this is a good one to entertain at length. I've found it useful, and hope you will too.

Also, this gets us firmly back on the topic of the thread, because the guy who wrote this didn't punch Nazis, he hanged them.