Interview with Bruce Fein on the Powers of a President
Mandeville, LA – Exclusive Transcript – “We’ll go to the Dude Maker Hotline and say hello to resident expert on these matters, Bruce Fein. Bruce is formerly of the Reagan administration and the Injustice Department, and a scholar on the U.S. Constitution of great repute.” Bruce, how are you? Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: We’ll go to the Dude Maker Hotline and say hello to resident expert on these matters, Bruce Fein. Bruce is formerly of the Reagan administration and the Injustice Department, and a scholar on the U.S. Constitution of great repute. Bruce, how are you?
Bruce Fein: I’m doing well this morning, thank you, Mike.
Mike: I know you’ve written about this and I guess it’ll be published today in USA Today, right?
Fein: That’s what I’m expecting.
Mike: We’re talking about today whether or not the President of the United States, the current occupant of the White House, has the legal authority to begin hostilities anew in Iraq. You say?
Fein: No. Like so many other things, Mike, the expectation or the assumption that the president decides everything in foreign affairs is contra-constitutional. It’s counter-historical if we go back more than a few years. Unfortunately, it’s breached routinely without protest from Congress or the American people, to say the least. We’re growing every day with limitless executive power. If you look not only with regard to the president flirting with unilateral action in Iraq without congressional authority, just pick up your newspaper today. The president is prepared to issue an executive order, substituting for antidiscrimination legislation that Congress should be considering, about prohibiting discrimination in employment based on sexual orientation for federal government contractors. He’s unilaterally writing legislation.
Then we see that he’s set aside some staggering preserve in the Pacific Ocean under the Antiquities Act, unilaterally. That could have an enormous impact on our fishing industry. And to further the limitless executive power, we have a ruling out of the Court of Appeals saying a defendant in a prosecution doesn’t have a right to look at the applications made for a FISA secret court warrant to authorize the NSA to spy on us because it’s classified, and, therefore, the defendant is denied a right to challenge the legality of the warrant. All those are just routine examples of limitless executive power. The Iraq situation is another in that quiver.
You can think of Syria. Everyone believes that President Obama will unilaterally decide what to do in Syria and it won’t be an issue that Congress will address. This is a great untold story of the time. We are coming to a situation where our president has vastly more power than King George III of England, whom we overthrew for exercising far less unilateral authority.
Mike: I was just reading today an essay written by one of your colleagues, Lawrence Reed. He’s asking the question “Are we Rome?” As I’m reading this I’m going: Well, if Livy, the Roman historian, is correct, yeah, we are. We don’t have Caesars; we have presidents. I’ll tell you something else I find just nags me and bothers me to no end, Bruce. Just the other day, Speaker of the House Boehner was very loudly reminding the president that he didn’t have the authority to do something. I don’t even recall what it was. It was a trivial matter. I sat here on the show and thought to myself very angrily: If he doesn’t have the authority to do that, why don’t you try to stop him when he’s bombing somebody back into the stone ages in the Middle East? He doesn’t have the authority to do that, either.
Fein: Exactly right. Your critique is right on, Mike. The legislature was given the power of impeachment in order to remove people from office who couldn’t be trustworthy custodians of our liberty and the rule of law. It’s not the guillotine. It’s not a coup d’état. It’s what happened and Nixon became an elder statesman. That’s what the impeachment power is for. There’s no other way to control limitless executive power. Instead of actually exercising that power, Congress then barks like a little dog, runs back into its kennel, and then starts to weep that the president is usurping the power. They will not do anything. They are spineless, an invertebrate branch, that’s a disgrace to the United States.
The founding fathers understood that the branches would try to aggrandize power. They expected the executive branch would try to overreach. They expected that Congress would exercise its responsibilities, draw the line, and say you can’t do this. We have the opposite. And it’s both parties. Both the Democrats and Republicans acquiesce in daily usurpations of power by the president because they want to evade responsibility. They want to evade accountability. They want to be like movie stars on the stage. They get their few days of moments of glory on TV and don’t actually play any serious role whatsoever. It’s not going to change until the American people throw these people out of office. Maybe the defeat of Eric Cantor in his primary in Virginia is a shot across the bow, but that has to become systematic not episodic if we’re going to change Congress to do its duty and restore our republic rather than one-branch secret government, which is what we’ve got today.
Mike: One of the things that Christopher Ferrara said to me yesterday, and I had forgotten about this, is that Patrick Henry, during the debates over ratifying the Constitution, said something to the effect that: There will be no separations of powers like Mr. Madison claims. Your government will devolve. The only separation you’ll have it you’ll have separate buildings. That’s basically what we have today. As I was reading your piece that is hopefully to be published in USA Today, you go through the legalities. I would like for you to please explain this to the audience so that they are on firm footing when they’re debating with someone who is either, A, a neocon insisting that we have to go back and bomb Iraq, and whoever is causing problems, back into the stone ages, or B, an Obama sycophant who wants the same thing simply because they’re a fan of the president. Under the War Powers Resolution that can’t happen. Under the 2001 authorization to use military force, that shouldn’t happen. I’m going to rely on you to explain this to the audience.
Fein: Let’s start really at the Constitution, which is the baseline here, and then supplemented by the statutes. Mike, the audience needs to know that every member of the Constitutional Convention, every participant in the ratification debates supported the idea that only Congress could authorize the initiation of the offensive use of the military. That was understood by George Washington, Thomas Jefferson, and James Madison especially. The reason wasn’t an academic one. All of history had taught them that the executive branch is inclined to invent or exaggerate dangers to justify gratuitous wars because power concentrates in the executive during wartime. You get the secrecy, government contracts, the jingoism, the footprints in the sands of time. So they said we will not permit a president unilaterally to decide to initiate war. Only Congress can do that.
That makes clear that any effort by the president to act unilaterally to engage the United States in warfare, even as a co-belligerent with Mr. al-Maliki, the prime minister of Iraq at present, is not authorized by the Constitution unless Congress has created that authority. If you look at the Iraq War Resolution of 2002, it’s limited to president’s use of force to do one of two things: one, enforce UN Security Council resolutions, and that’s not at play now. The second is to eliminate a danger or threat that Iraq poses to the United States. Of course, the incumbent regime in Iraq is one of our puppets. It’s not an adversary, so that doesn’t apply. The War Powers Resolution makes clear that it is not intended to disturb the constitutional assignment of authority between the president and Congress, that it states the circumstances in which the president can use force abroad. A declaration of war doesn’t apply now. A specific congressional statute doesn’t apply or responds to an actual attack on the United States. We haven’t been subject to any attacks.
Lastly, some have suggested this authorization to use military force that was passed to attack those involved in Al-Qaeda that were complicit in 9/11 might be used here, but that’s wrong again. ISIS, which would be the targets of our military force, are enemies of Al-Qaeda. They have split off. They’re not a branch. They’re not a satellite or anything of the sort. The authorization to use military force is unavailing as well. We have clear lack of legal authority and Congress just sits there. It weeps that it has no power and does nothing to reclaim it.
Mike: That is quite an explanation. Succinct as it is, it’s overflowing with details. Again, last time you were here, I asked you if you thought your average member of Congress would understand what you just said. I understand it because I’ve been inspired by men like you and Professor Gutzman and others. I’ve taken the time to study what you have just said in trying to apprise myself in the history of it, and then the principle behind why we have these delegations and assignations of power. I don’t think your average member of Congress understands this, and that’s the problem, isn’t it?
Fein: It is a problem. They are ignorant of the Constitution, which really is quite disgraceful. Remember, they took only one oath required by the Constitution, and that’s to defend and uphold it. How can you take an oath to uphold a document you don’t even understand, that you haven’t even read? It’s like the Rosetta Stone to you without the interpretive force of Champollion. That’s a duty they have, as a member of Congress, to understand it and to assert their powers. I keep coming back, we need to give spines to those members who will stand up to the president, support them. They have to make these decisions. We have more control over the members. And the president, who’s some distant figure, who’s far more removed from popular opinion, does things on his own. Part of it is our own dignity. This country was built on the idea of self-government. We may make errors but it’s our errors. There’s a dignity in making errors of your own rather than just following the order of a lord like you’re a vassal or serf. That’s what made this country great, and we need to restore that pride in ourselves. Our ability and willingness to accept accountability for our decisions, rather they’re right or wrong, that is what will restore the glory of liberty to this country.
Mike: Bruce, we didn’t talk about this in our exchange yesterday, but I’m fairly confident that you can shed some light on this. Talk for just a moment if you will — you are an attorney and you did function in that capacity in the Reagan administration. If you were in the Reagan administration and someone like Lois Lerner had mysteriously lost these emails that have allegedly gone missing — they have all my emails, they have all your emails, they have all of our friend Lew Rockwell’s emails, they have every single one of them but they don’t have Lois Lerner’s. You would say or do what?
Fein: Right now I’d say ask the NSA and Mr. Clapper because they’ve got everything as your backup. Mike, it reminds me — I was involved in the Nixon impeachment case. The eighteen-and-a-half-minute gap, what happened to the disappearance? We know the eighteen-and-a-half-minute gap was one part of a proof of a conspiracy to cover up and conceal a crime. That’s what this reminds me of. It’s not an eighteen-and-a-half-minute gap of a tape, but it’s a similar gap in the chronology of emails that could cast light on the motivations behind Lois Lerner. Why this is so critical is because, in so many areas of the law, Mike, motivation is very, very central to the difference between wrongdoing in a crime or some innocent mistake. This is not just one or two emails. It goes for a very, very substantial period of time. Here’s a chance where maybe the NSA can do something right for a change. They can be the Alex Butterfield who comes forth and says: You may not know but we’ve got the backup.
Mike: The cynic in me almost wants to say that — as you said, motivation for these sorts of things is central to why they are committed and sometimes how they are committed. The cynic in me wants to say — although I don’t want to seem to be that conspiratorial — that the only way you could possibly get away with this is if one side went to the other and said: Look, here’s what’s going to happen. We’re going to say that the emails have gotten lost. Now, before you jump across the table, what you’re going to say is, “That is totally unacceptable and we’re going to get to the bottom of this!”
You’re going to yell at us and accuse us of all sorts of things. We know that our guys aren’t going to lose any House seats over this. We know that you guys’ fundraising is going to go through the roof over this. Everybody wins and what Ms. Lerner did is never discovered. If it is, it’ll be by Bernstein and Woodward. Am I being too cynical?
Fein: No. Oftentimes you have a rehearsed charade up there. You have faux pain, faux outrage or whatever. You’re right, nothing happens. It’s like watching a movie. That’s their mentality in the Congress. They believe they’re not serious people. They’re up there on the stage. They love the choreography. Nothing actually happens at the end of the game. We need to spank these people, get them out of office, and put in people who take pride in being Americans, take pride in actually deciding what their office requires them to decide rather than evading that kind of responsibility.
End Mike Church Show Transcript