Executive Privilege

The news media has been nonstop in its indignation and condemnation toward President Obama for invoking executive privilege with regard to “Operation Fast and Furious.”  

To briefly summarize what brought us to the current situation:  the Obama Administration told a U.S. House panel that the President is asserting executive privilege by refusing to turn over documents related to a U.S. law enforcement gun operation.  President Obama invoked this privilege just before a House committee vote to hold Attorney General Eric Holder in contempt of Congress for failing to provide documents subpoenaed more than eight months ago related to the failed "Fast and Furious" operation.  Guns lost in the operation, which was originally meant to track the flow of firearms between the United States and Mexican drug cartels, were found near the scene of Border Patrol Agent Brian Terry's murder in 2010. 

While Congress reviews the issue of whether or not the withholding of such information is vital to our National Security, and whether or not President Obama is justified in doing so, let us examine the practice of “Executive Privilege.”  When did the use of executive privilege start?  Who has used it in the past?  By reviewing its history, perhaps we can better understand what is happening between the White House and Congress.

The simplest definition of executive privilege is the privilege, claimed by the President for the Executive Branch of the Government, to withhold information in the public interest.  Executive privilege is a claim by the President or other official of the Executive Branch that he/she need not answer a request (including a subpoena issued by a court or Congress) for confidential government or personal communications on the ground that such revelations would hamper effective governmental operations and decision making.  The rationale is that such a demand would violate the principle of separation of powers among the Executive, Legislative and Judicial Branches.

Executive privilege is not mentioned in the Constitution, but, since our founding, Presidents have on occasion claimed a right to withhold information from Congress to preserve the confidentiality of that information in the face of legislative inquiry.

Further, the Supreme Court (in US vs. Nixon) ruled executive privilege to be an element of the separation of powers doctrine, and/or derived from the supremacy of the Executive Branch in its own area of Constitutional activity.  Chief Justice Burger noted: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.”

Our first President, George Washington, claimed executive privilege in 1796, when the House of Representatives asked him to reveal details of the Jay Treaty with Great Britain.  Washington refused to do so since the House was not involved in making the treaty and hence had no right to view the information.

Thomas Jefferson also asserted the privilege with regard to documents requested in the treason trial of Aaron Burr, claiming their release would endanger public safety.  The Supreme Court overruled Jefferson’s claim and the documents were released.

During the period of 1947-1949 several major security cases became known to Congress.  A series of investigations ensued, culminating in the Hiss-Chambers case of 1948.  The Truman Administration issued a sweeping secrecy order blocking Congressional efforts from obtaining FBI data, and other executive data, on security issues.  Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters.  Investigation of the State Department and other cases was stymied and the matter left unresolved.

In 1954, President Dwight D. Eisenhower instructed the Department of Defense not to share any information about its internal affairs with Congress, which was then holding the Army-McCarthy Hearings.  Although Eisenhower cited national security as the reason for his order, the broad scope of his order covered a great deal of Defense Department information that had nothing to do with the hearings.  In the end, Eisenhower would invoke the claim forty-four times between 1955 and 1960.

During the Watergate scandal Nixon invoked the privilege to keep from turning over tapes of White House conversations on charges that had been brought against members of his administration.  The Supreme Court ruled against him.  If there is a potential criminal charge, executive privilege will be denied.  However, as mentioned above, at that time, the Supreme Court found a Constitutional basis for claims of executive privilege when ordering Nixon to surrender his tapes, leaving the door open for Presidents to cite it in future disagreements with Congress.

In our more recent history, since 1980, executive privilege has been used twenty-five times:

President Barak Obama – 1

President George W. Bush – 6

President William Clinton – 14

President George H. W. Bush – 1

President Ronald Reagan – 3

We do not go to court to settle the executive privilege issue once and for all because:  (1) Presidents worry that, if they lose, courts will take away a valuable tool and weaken the power of the office; (2) on the other hand, if the lawmakers lose, they could permanently weaken Congress' subpoena power when it investigates Executive Branch blunders.

What happens next seems to seem the major question.  Even if Holder is held in contempt, it is not clear whether or not he would be forced to do anything.  Congress could file a lawsuit against him or try to arrest or fine him to force him to comply.  The case could go to the local U. S. attorney for enforcement.  But that's a long shot.  Consider:  Who is that local U. S. attorney’s boss?  Holder, and ultimately, Obama, who appointed him.  That is why the Justice Department traditionally declines to pursue such contempt of Congress cases.  Disputes over executive privilege are usually settled with a compromise between the Executive Branch and Legislatures.

While the end of this affair is still up in the air, and while President Obama might be right in withholding documents, a real fact of the matter is that this is an election year and the people of the United States now, more than ever, are quite vocal in consistently asking of ALL politicians, Republican or Democrat, on ALL issues, “What are they hiding and why?”  Without satisfying resolution, this issue cannot help but leave those questions of what and why linger through to the November election.

That being said, we also cannot forget that other Presidents have invoked executive privilege. President Obama is not the first, and we can say with a more than confident certainty, based on both precedence and Supreme Court ruling, that he will not be the last.

                    Until the next time, LLAP!

References:

http://www.legal-explanations.com/definitions/executive-privilege.htm

http://suite101.com/article/executive-privilege-defined-and-explained-a327454

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=683

http://writ.news.findlaw.com/dorf/20020206.html

http://www.csmonitor.com/USA/DC-Decoder/Decoder-Wire/2012/0620/On-Fast-and-Furious-Obama-invokes-executive-privilege.-What-s-that

http://www.propublica.org/article/the-facts-behind-obamas-executive-privilege-claim

The Electoral College

Since this is a Presidential election year, and, without fail, vigorous discontent about the Electoral College system extends through and immediately following a Presidential election, I thought it would be a good idea, as a timely refresher, to talk about the system, its origins, how it works, etc., with the hope that we might be able to better formulate our arguments either for or against it.

When we vote in a Presidential election, we actually vote how the electors from our state will vote.  By midnight of the day of the election, we usually know the winner, but it is not until electors cast their votes in their respective state capitals that we officially have a new President and Vice President elect.  By the way, the electors do not actually cast their votes until the first Monday after the second Wednesday in December.  This tradition began in the 1800s because it took that long after the popular election to count the votes and for the electors to travel to their state capitals.

The Electoral College (hereafter referred to as EC) system was established by Article II of the Constitution and amended by the 12th Amendment in 1804.  The exact wording is at the Government Archives website: http://www.archives.gov/federal-register/electoral-college/provisions.html.   The EC is administered by the National Archives and Records Administration.

The EC was originally formed because the Founding Fathers wanted to ensure that people were given direct input in choosing their leaders and initially only saw two ways to accomplish this:  either everyone would vote for and elect the President and Vice President based on popular votes alone, or people of each state would elect their members of Congress by popular election and then those elected members of Congress would in turn elect the President and Vice President themselves.

The direct popular election option was feared because there was no structure yet by which to choose and limit the number of candidates.  There were no national political parties at the time and communication was slow.  A candidate could be popular regionally, but be unknown to the rest of the country.  A large number of regionally popular candidates could divide the vote and not indicate the wishes of the nation as a whole.  On the other hand, election by Congress would require members to vote according to the desires of the people of their states.  However, this could have led to elections that reflected political agendas of the members of Congress over that of the people.  The compromise was Electoral College system.

Although state laws differ on how their electors are chosen, generally they are selected by the individual state’s political party committees.  You can check out your own state’s procedure by going to your state’s website and searching for “Electoral College.”  As an example, I looked up California and found this: http://www.sos.ca.gov/elections/elections_ec.htm.  It is important to note that Article II, Section 1, Clause 2, of the Constitution provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”  Electors generally hold a leadership position in their party or are chosen to recognize years of loyal service to the party.

The number of electors in each state is equal to its number of each state’s members in the U.S. House of Representatives plus two (for the number of Senators).  The District of Columbia gets three.  Each elector gets one vote.  Thus, a state with eight electors would cast eight votes.  There are currently 538 electors and the votes of a majority of them – 270 votes – are required to be elected.  Since EC representation is based on Congressional representation, it follows that states with larger populations get more EC votes.

The distribution of electoral votes for the 2004 and 2008 Elections is given here:  http://www.archives.gov/federal-register/electoral-college/2004/allocation.html.  Note that the website explains that the numbers of votes allocated were based on the 2000 Census, which determines the number of Representatives in the House, which (again) determines the number of electoral votes.

If neither candidate wins 270 electoral votes, the election is decided by the House of Representatives.  The combined Representatives of each state get one vote and a simple majority of states is required to win.  In our history, two Presidents have been elected by the House:  Thomas Jefferson in 1801 and John Quincy Adams in 1825.

Forty-eight states use a winner-take-all system (giving all its electoral votes to the candidate who receives the highest popular vote); however, Maine and Nebraska do not.  These two states grant their electoral votes based on the popular votes in each Congressional district of their states.  If a candidate receives the majority of votes in California, he or she will be awarded all fifty-five electoral votes.  However, if the same candidate does not win the majority in Nebraska, he or she can still gain one or two electoral votes if he or she wins one or more district.

When you look at the electoral votes for each state, you can see how it is possible it is for a candidate to lose a popular vote but still be elected President by the EC.  Theoretically, in one scenario, a candidate could win in only eleven states (California, Texas, Florida, Georgia, North Carolina, New Jersey, Pennsylvania, New York, Ohio, Michigan, Illinois) and the District of Columbia, and lose in the other thirty-nine, and still be elected.  

In our recent history, in the 2000 election, George W. Bush, with 50,456,002 popular votes won 271 electoral votes; Al Gore, won the popular vote with 50,999,897 votes, but won only 266 electoral votes.  (Note: one elector from the District of Columbia abstained.)  Bush was elected.  This is not the only time in our history that a President was elected who had not won the popular vote:  Rutherford B. Hayes in 1876 and Benjamin Harrison in 1888.

There actually is nothing in the Constitution that requires an elector to vote for the candidate of the party that chose them.  Twenty-six states have no requirements.  Nineteen states and the District of Columbia have laws requiring electors to vote for the nominees heading their party slate, but provide no penalty for those who do not.  Five states have penalties for electors who violate their pledges.  Throughout our history only ten electors (referred to as “faithless”) have failed to vote as pledged.  None of these “faithless electors” changed the outcome of an election, but cast their votes to make a point or highlight an issue.  While there were no legal ramifications, political reputations and careers were damaged.

The very nature of the EC makes it ripe for controversy:  the Presidential election is not made by the popular vote; there is always the possibility that “faithless” electors will vote contrary to the public will; and voter turnout could be affected.  On the other hand, the EC system encourages political parties to coalesce divergent interests into two sets of coherent alternatives which contribute to the political stability of the nation.

To eliminate the Electoral College would require an Amendment to the Constitution.  So the next time you find yourself complaining about the Electoral College, take the time to write your Representatives and your Senators.  Join an action group or start your own.  Start working towards amending the Constitution.

But, please, don’t carry on ad nauseum about an “unfair system” unless you are ready to underline your complaints with meaningful active engagement.

Until next time, LLAP!

References:

http://www.archives.gov/federal-register/electoral-college/about.html

http://www.kintera.org/site/apps/nl/content2.asp?c=fvLRK7O3E&b=190089&ct=262799

http://www.ourwhitehouse.org/gettingthevotes.html

http://uselectionatlas.org/INFORMATION/INFORMATION/electcollege_procon.php

Money, Wealth and the Economy

This week’s blog consists basically of my feelings and thoughts about money, wealth and the economy.  Short, sweet and to the point:

• “He who dies with the most toys wins” is wrong.  “He who has played with the most toys” is the real winner.
• Paying the bills isn’t painful; but making those subtractions hurts like hell.  They need to invent a calculator that has no subtract function.
• Dying with a hefty bank account only means you never learned to live.
• Money does not equal class.  You can’t buy class no matter how much you are willing to pay for it. 
• Don’t worry about the people who look like they might cheat you.  Worry about the ones who don’t.
• I have no problem whatsoever with people being given needed assistance, but a person who owns and drives a $60,000 car does not belong in Section 8 Housing.
• Always tip your hairdresser well.  After all, he or she works with sharp implements.
• We frequently forget that money is simply a trade commodity; how much we have in the bank is no indication of our worth or character.
• “The rich get rich and the poor get poorer” are lyrics from a song written in 1921.  Some things never change, do they?   
• The problem lies not with that 1% who hold a great deal of the country’s wealth, the problem lies with a Congress and the State  & County Governments that decide to go on nonstop shopping sprees with whatever assets that the remaining 99% might have.
• Haul out the caskets and rehearse the dirges:  the Middle Class is now dribbling out its last pint of blood.

Now, I will end with the following observation from W. Somerset Maugham:

If a nation values anything more than freedom, it will lose its freedom, and the irony of it is that if it is comfort or money that it values more, it will lose that too.

No, I lied  . . . . . I will end with the following from Woody Allen:

If only God would give me some clear sign!  Like making a large deposit in my name in a Swiss bank.

Until the next time, LLAP!

THE BRANE AND I

A few months ago I was lying in bed, crossword in hand, that evening’s PBS program adjusted with just the right narrative drone to lull me to sleep.  Somewhere in the process of nodding off to Dreamland, my brain registered the words coming from PBS:  “membrane” “dimension” and “multiverse.”  Dreamland faded away.

The narrator was explaining the extension of the String Theory called “The Brane Theory.”  As I listened, my own brain shifted into overdrive with the potential ramifications.

Starting with a layperson’s very brief explanation of these theories:

Per the String Theory, electrons and quarks within and atom are not zero-dimensional objects, but rather one-dimensional oscillating lines called strings. String Theory unites the infinitesimally small to the world we know through our senses. 

From the String Theory, we go on to the Super String Theory, which unites all four forces of the universe: the strong and weak nuclear forces, electromagnetism and gravity.  Super String Theory holds that there are ten dimensions:  the three we know about (length, width, depth), six others within space and time, and time.

M-Theory, an extension of Super String Theory, proposes eleven dimensions: ten parallel dimensions separated into multiverses by a membrane.  These ten parallel dimensions share the eleventh dimension of time.  The added dimension (eleven, up from ten) contributes a new kind of string which could be stretched infinitely to create a floating membrane.  Our universe exists on a floating membrane along with infinite parallel universes each on their own membrane.  Infinite membranes exist that each support a separate but parallel universe.  M-Theory with that added constituent of membranes is also referred to as “The Brane Theory.”

Physics has officially introduced the concept of parallel universes.  Perhaps it had done so before, but certainly not with the impact of the Brane Theory. No longer is the concept of parallel universes confined to the various theories of spirituality and/or science fiction.

I must now warn you, to paraphrase Rod Serling:  We are moving into a land of both shadow and substance, of things and ideas. We are crossing over into... the Twilight Zone.

 If our universe as we know it exists in one of these ten parallel dimensions, what exists in the other nine dimensions? If life exists in our dimension, who is to say that life does not exist in any of the other dimensions?

If these dimensions are so close, separated by this membrane, what is to prevent, what has prevented, life forms from any one of these dimensions from interacting with another, if anything indeed has prevented this at all.  Consider the infinite possibilities.

We all have read stories, even have known people, who have heard voices, had visions, usually dismissed as results of imaginative minds, hallucinating schizophrenics, religious ecstatics, ambitious spiritualists.  But wait a minute.  Perhaps in the light of the Brane Theory it isn’t so far-fetched that contacts have been made with an “other side.”  Perhaps the voices heard were legitimate; perhaps the visions real.  Perhaps our dreams are reflective layers of the varying events occurring in the multiverse.

Let’s leave behind for a moment (in the light of the ramifications of the Brane Theory) the possibility that the people who hear and have heard voices really have heard or do hear voices.   Let’s also leave behind for now the possibility that people who have had visions were not victims of overactive imaginations or victims of severe psychosis. Let’s leave the “possibilities” behind and enter into the “real world” of a few recorded instances of noted historical figures . . . generally accepted credible figures . . . who have openly acknowledged voices or dreams:

·         Joshua Slocum, the first to sail single-handedly around the world in 1898, claimed to have been aided by the ghost of Christopher Columbus’s helmsman.

·         Mahatma Gandhi relied on what he believed to be the “Voice of God,” for guidance.  He affirmed “. . . . not the unanimous verdict of the whole world against me could shake me from the belief that what I heard was the true Voice of God.”

·         Philip K Dick, who wrote “Blade Runner,” “Total Recall” and “Minority Report,” described a voice he heard as feminine which guided  him and spoke to him sporadically.

·         Sigmund Freud wrote, “During the days when I was living alone in a foreign city….I quite often heard my name suddenly called by an unmistakable and beloved voice….”

·         Socrates relied on an inner voice that he heard only when he was about to make a mistake.

·         Winston Churchill, politician, British Prime Minister, heard voices. During World War II, Churchill said his voices would tell him to “sit here” or “sit there.”

·         The Roman Emperor Marcian dreamed he saw the bow of Attila the Hun break on the same night that Attila died.

·         Plutarch relates of the ill Emperor Augustus who, through the prophetic dream of a friend, was persuaded to leave his tent which a few hours later was pierced with enemy swords.

·         Hannibal based his battle plans against the Romans according to a prophetic dream.

·         Abraham Lincoln dreamed of his own death just days before his assassination.

·         The defeat of Napoleon at Waterloo was foretold in a prophetic dream.

·         Peter Sellers had a ghost that travelled with him which he was always sure was his guiding spirit through life.

·         During a cross-country flight, Vincent Price looked out of the airplane window and saw the message "Tyrone Power is dead” spelled out across a cloud bank. When he landed he learned that his friend, Tyrone Power, indeed had died a couple of hours earlier.  

Any existing inability or unwillingness to accept the proposition of legitimate occurrences of visions, voices and dreams from an “other side,” in the light of the Brane Theory, might signal that an overall shift in mind-set is due.  Visions, voices and dreams just might have their origins in one or more of those multiverses that exist on other membranes.

While we are currently still treading in the waters of theory and speculation, it is fascinating, is it not, how scientific theory and what we term spirituality (extreme cynics might use the word hallucination) are becoming closer allied, rather than pitted against each other in an “us vs. them” intractable conflict.

Until the next time, LLAP!

References:

http://www.wisegeek.com/what-is-string-theory.htm

http://www.mentalhealthforum.net/forum/showthread.php?31292-Famous-people-who-hear-or-have-heard-voices%85

http://www.intervoiceonline.org/about-voices/famous-people

http://www.dream-interpretation.org.uk/types-of-dreams/prophetic-dreams.htm

http://www.unexplained-mysteries.com/forum/index.php?showtopic=96330