The President Is Not The Chief of the Nation

March 12th, 2013

By Dan Miller

He is the chief Only of the U.S. military. Our nation has no “Chief” or “Commander.”

As shown below, the President often behaves as though he considers himself the Commander in Chief, not only of the U.S. Military but of the nation. Others seem to respond to him as though he were. He isn’t and the differences are great. Yet Hail to the Chief, played at official and many unofficial presidential appearances, says that he is our Chief and our commander.

The lyrics are not usually sung. Here they are:

Hail to the Chief we have chosen for the nation,
Hail to the Chief! We salute him, one and all.
Hail to the Chief, as we pledge cooperation
In proud fulfillment of a great, noble call.
Yours is the aim to make this grand country grander,
This you will do, that’s our strong, firm belief.
Hail to the one we selected as commander,
Hail to the President! Hail to the Chief! (Emphasis added.)

The article linked immediately above attributes the customary omission of the lyrics to partisan motives. However, there are far better reasons and they are the focus of this article.

Sure, it’s “just” a song. However, I wonder what percentage of voters understand it as an accurate reflection of the authority and powers of the President. According to Chris Rock, a popular actor and comedian,

The President of the United States is, you know, our boss. But also, you know, the president and the first lady are kind of like the mom and the dad of the country. And when your dad says something, you listen. [And] when you don’t, it usually bites you in the [expletive] later on. So I’m here to support the president.

Retired Supreme Court Justice Souter recently commented,

I don’t believe there is any problem of American politics and American life, which is more significant today, than the pervasive civic ignorance of the Constitution of the United States and the structure of government. (This response earned Souter a round of applause)

We know, with pretty reliable evidence, that two-thirds of the people of the United States do not know that we have three separate branches of government. I remember … a survey back four or five years ago in which a substantial percentage of Americans believed that the Supreme Court … was a committee of the Congress. It didn’t used to be this bad. …

I don’t worry about our losing a republican government in the United States because I’m afraid of a foreign invasion. I don’t worry about it because of a coup by the military, as has happened in some other places. What I worry about is that when problems are not addressed people will not know who is responsible, and when the problems get bad enough – as they might do for example with another serious terrorist attack, as they might do with another financial meltdown – some one person will come forward and say: “Give me total power and I will solve this problem.” (Emphasis added.)

I share Justice Souter’s concern. Neither President Obama nor anyone else is “our boss,” the “chief we have chosen for the nation,” or “the one we selected as commander.” Many did not “pledge cooperation in proud fulfillment of a great, noble call” beyond that set forth in the Constitution and laws enacted pursuant to it. We did not, for example, pledge to cooperate in his unilateral evisceration of existing Federal laws of which he disapproves or in his unilateral promulgation of such new laws as he may desire. Neither we, nor the Constitution, granted him substitute legislative authority — despite his attempted and too often successful assertions of legislative powers. We did not approve what seems of late to have been his motto, “Look, if Congress won’t act, then I will.” Even if we had approved his usurpation of the legislative authority of the Congress, the Constitution would prohibit (but not necessarily prevent) him from doing it. Perhaps he thinks the lyrics of Hail to the Chief accurately describe his job. They do not appear to humble him as one would expect of any President of normal sensibilities. He seems to be very different.

Duties and responsibilities of the Commander in Chief of the U.S. Military

Article II of the Constitution delineates presidential authority and responsibility. Section 2 provides:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices….

Under Article II, Section 3, the President “shall Commission all the Officers of the United States.” That’s about it, and even for that his practical qualifications are at best dubious. It may not be accurate to claim that, before becoming Commander in Chief of the U.S. Military, President Obama had never heard a shot fired in anger. He lived in Chicago and tried to organize communities where, I understand, gunfire is common. However, as far as we know — and we unfortunately know very little about his early years — he never wore a military uniform, never commanded troops or even served as one. His knowledge of military tactics and strategy appears to be less than that of this famous major general, who could legitimately (at least in a Gilbert and Sullivan operata) wear a major general’s  uniform.

That major general’s military knowledge, stated desire to improve it and military abilities  seem to outshine those of the current Commander in Chief of our military. While President Obama talks soothingly and convincingly to some, not even he can match the fast-talk cadence of that make-believe major general.

Congressional duties and responsibilities in matters military

Article I delineates congressional authority and responsibility. Section 8 of Article I provides, with respect to the U.S. military,

The Congress shall have Power To …

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

No legislation can abrogate the President’s authority under Article II and no Executive action can abrogate that of the Congress under Article I.

The President is not otherwise authorized to function as our Commander.

U.S. military personnel (including those of “the Militia of the several States, when called into the actual Service of the United States”) are required to obey the lawful orders of officers and non-commissioned officers appointed over them, including the lawful orders of their Commander in Chief. Should Private Jones’ platoon sergeant order him to dig a foxhole, he has a legal obligation to obey that order, assuming its lawfulness. Should President Obama order Speaker Boehner (or any other civilian) to dig a foxhole — or perhaps to ensure the passage of legislation he desires — he would have no legal or other obligation to obey. I do sometimes wonder, however, whether he might obey anyway in the spirit of “bipartisan cooperation.”

Under Article II, Section 1, “The executive Power shall be vested in a President of the United States of America.” “Executive Power” is not usefully defined there but presumably means the power to execute his duties and responsibilities under the Constitution and laws enacted by the Congress consistent with it.

Presidents have long promulgated Executive Orders but President Obama seems to have gone further than his predecessors. Some have directed Federal agencies to act in specified ways when enforcing Federal legislation. Some have directed Federal agencies to disregard Federal legislation, and I consider those at best problematical. For example, President Obama’s Dream Act order appears to be unconstitutional to the extent that it directs Federal agencies to enforce “selectively” — i.e., only in the ways it specifies — immigration laws enacted by the Congress and signed into law by former Presidents. As noted in this NPR article,

President Obama’s announcement Friday that he is using his executive authority to defer deportation proceedings for young immigrants who entered the U.S. illegally but meet certain requirements was just the latest example of the president’s use of his power to act without Congress on policy issues.

And like the other actions the president has increasingly taken as part of his “We Can’t Wait” initiative, the decision announced Friday was characterized by Obama’s political opponents as an abuse of power and violation of congressional prerogatives.

All of which goes to prove that Obama has reached the stage in his presidency, like so many of his predecessors, where his frustration with congressional inaction has led him to act unilaterally. (Emphasis added.)

That is not a good thing. Notice, however, that the linked article refers to presidential power and authority as essentially the same. They are different. I may have the power to murder my neighbor, but not the authority. President Obama has the apparent power to do things which he lacks authority to do, under either the Constitution or under laws promulgated pursuant it. He uses that power, and will likely continue to do so until the Congress, the Supreme Court and/or maybe even we the people require him stop.

An interview with William Howell, a political scientist at the University of Chicago, is cited in the linked NPR article with apparent approval. There, Mr. Howell opines, with reference to the “Dream Order,” that

The boundaries of presidential power are constantly being negotiated and renegotiated. This is very typical. In some ways the option itself may be atypical. We haven’t seen presidents issue this particular kind of policy initiative on their own before. But all the time, presidents are pushing out on the boundaries of their power and claiming new authority. And their ability to actually secure that authority crucially depends on how the two other branches of government respond.

So the idea that presidential power is fixed and static is a deep misnomer. It mischaracterizes both the long trajectory of presidential power over time and it also mischaracterizes what the founders themselves had in mind. They fully expected various branches of government to be pushing and pulling. (Emphasis added.)

Mr. Howell traces President Obama’s actions to the recent debt ceiling kerfuffle(s).

He really got beaten up over that. Because he was perceived as not providing the kind of leadership and initiative and drive that we expect of a president. And since then he has said repeatedly “Look, if Congress won’t act, then I will.” And you have seen him in a variety of areas, take the area of education, unilaterally stepping in and issuing waivers to the most binding provisions of No Child Left Behind to states, on the basis of their willingness to adopt policies that he likes.

It’s really an extraordinary move because he’s allowing states to opt out of some pieces of federal legislation so long as they adopt policy initiatives to his liking. And this is an area where Congress has just dropped the ball. The reauthorization has been up for years. For four years they’ve just taken a pass each year.

Immigration is another one of these policies where Congress is effectively stuck. We saw that with [George W.] Bush where he tried to engage Congress and introduce comprehensive immigration legislation and he was beaten up over it. I think in this sort of policy area, this is going to be the wave of the future. [Presidents are] going to say, these are small incremental moves but they’re going to do it on their own. (Emphasis added.)

Back to the NPR authors,

A New York Times story in April, in which Howell was quoted, relates how Obama decided to use his executive power instead of allowing all potential policy initiatives to be stymied by a gridlocked Congress for the rest of his time in office. A meeting sometime last fall between the president and his senior aides was apparently where the plan came together, with Obama actually being the one who came up with the “We Can’t Wait” name for the effort.

Members of the Congress obviously have political motivations. President Obama’s motivations are no less political and that is perhaps the field in which he is best versed. Except perhaps when referring to their own colleagues, our elected officials are more often referred to as “politicians” than as “statesmen.” The former is generally seen as a term of disparagement, the latter as a term of praise. There are reasons for that.

Sometimes there is insufficient political support in the Congress for what the President wants. Political motivation is not necessarily bad and, to the extent that our CongressCritters represent the voters in their districts and States, that is a good thing.

However, there are also quite valid non-political reasons why the Congress does not always act as the President desires. The Congress, like the Executive and Judiciary, is and must remain a co-equal branch of Government. Each has its own functions and authorities not duplicated by those of the other branches. Neither the Legislative nor the Judicial Branch is either subject to presidential command or subordinate to him in fulfilling its own duties and responsibilities under the Constitution.  It is not the constitutional prerogative of the President to legislate “if Congress won’t act” or otherwise to function, as suggested by the lyrics to Hail to the Chief, as the “Chief we have chosen for the nation,” or the “one we selected as commander.”

President Obama has claimed that “I am not a dictator.”

Let’s dwell on that interesting exchange at Friday’s press conference between President Obama and CNN’s Jessica Yellin:

Yellin:  Mr. President, to your question, what could you do–first of all, couldn’t you just have them down here and refuse to let them leave the room until you have a deal?

Obama:  I mean, Jessica, I am not a dictator. I’m the President. So, ultimately, if Mitch McConnell or John Boehner say, we need to go to catch a plane, I can’t have Secret Service block the doorway, right?

When we first heard Obama’s “I am not a dictator,” as we noted Friday, it reminded us of Nixon’s “I am not a crook.” But on further reflection, Clinton’s “I did not have sexual relations with that woman” is a more apt comparison. Of course Obama is not attempting to cover up wrongful behavior, but he did answer Yellin’s question in a weirdly literal way that was both a deflection and a revelation.

It’s true, of course, that Obama isn’t a dictator. He also seems to point that out a lot, as National Review’s Andrew Stiles observes. Last month, for example, he noted that “I’m the president of the United States, I’m not the emperor of the United States” and called this a “problem” that he has “struggled with throughout my presidency.”

It seems Obama wishes he had dictatorial powers. He probably enjoyed that little fantasy of having the Secret Service take his adversaries prisoner. In itself, that’s no big deal: We wouldn’t be surprised if other presidents occasionally entertain similar flights of fancy.

obama_dictatorThis is not an authorized presidential uniform; there is no authorized presidential uniform. President Obama could probably wear one if he chose and doing so might enhance his somewhat wobbly status in some foreign lands. Many dictators have worn similar costumes and many have affected the sorts of power and authority such uniforms suggest without bothering to don them.

The situation in the United States is, and must remain, unique. The United States have a literally (an oft misused word that nevertheless retains its meaning) unique (another meaningful but similarly misused word) Constitution. As one branch of Government strays from that Constitution, the United States can all too easily become a dictatorship even worse than what some of the Founding Fathers feared. It is the job of citizens to become and remain sufficiently knowledgeable and motivated to prevent that. We had best attend to it; it is the most important job that we have as citizens.

We of course have an anthem as well:

There is a short quiz at the end of our National Anthem. Although I had not previously thought of the last verse a quiz, I now do. The one question it poses is an important one, the answer to which more and more often escapes me.

(This article was also posted at Dan Miller’s Blog.)

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