Before I begin my rant, I have noticed that this topic may be a little heavy for some readers – or indeed for the ambience of the blog. It is not, after all, a light-hearted, fly-on-the-wall frolic about any random occurrence which for one reason or another might have tickled me in the right or wrong way. For that I apologise. There are reasons for my doing so which will become apparent, but I truly feel that this topic is worthy of discussion on our communal page.
No, unlike others, this is a tickle which won’t go away. It is a tickle which has festered into the bane of a thousand Democrats and, ironically, Republicans alike. But not US Republicans…
In one of my frequent scoffs at the notions of communism, fascism, Nazism and any other ism that for one reason or another decides to remind me of how much I love Australia, it occurred to me recently that there is one aspect of these modes of governance which is shared to some degree by that of the United States of America, and one which our system of parliamentary democracy largely avoids by endowing the head of state with merely a cursory role in the execution of the will of the people.
In other words, we purposely limit the Governor-General’s powers to a mere “rubber stamp”. And that’s the way I like it.In the words of James Madison, father of modern constitutional democracies and fourth President of the United States, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
The very definition of tyranny.
Indeed.
But surely, Rhys, I hear you say, you couldn’t possibly be comparing the tyranny of those oppressive regimes to the home of the brave and land of the free?
Well I do, Andrew, although in part, only to the extent that you would claim that communism is perfect in theory. So long as the “theory” is only applied to robots and not people.
Lets take a few regimes as convenient examples: Lenin’s Bolsheviks, Hitler’s Nazis, Mussolini’s Fascisti, and of course Bush’s Redneck Saudi Evangelical Warmongers. As hard as it might be to believe, these regimes all held the legitimate sovereign power of their respective nation states. As Nick often reminds us, “Can you imagine, if we lived in Germany in the late 1930s, we would be Nazis!”Hitler gained a vast majority of parliamentary support by the 1932 elections. In fact, so tumultuous was the political landscape of Europe at the time that no freely elected party in any country had achieved comparable electoral success. President von Hindenburg then duly appointed Hitler Chancellor in February 1933, and one month later the Enabling Act was legally passed to allow Hitler to enjoy full legislative power including that which might deviate from the constitution.
Mussolini reached power by being installed by King Vittorio Emanuele III in accordance with the Statuto Albertino, the Italian Constitution. Thus, although he held only a very small proportion of the support of Italy’s lower house in 1922, he still took power legally. Over the next 5 years he gradually saw to it that he was invested with power over more widespread areas of government.
The Bolsheviks, although through revolution, nonetheless established a sovereign state in Russia. The failing of the crown in defending her borders during the first World War turned Russia away from the monarchy and hugely bolstered the party’s support. The communist state doesn’t uphold the so-called separation of power between legislative, executive and judicial branches of government, and so Lenin assumed a great role.
And then there’s Bush. Now you will all remember his entry into the White House as being supported by a somewhat questionable ruling by the Supreme Court. Are you aware, however, of how Mr Bush has been using an executive power unique to the US President to effectively usurp (I love that word) power from the United states Congress and Supreme Court?
He can do this because he has the power to issue “signing statements”. But Bush has been instrumental in greatly enhancing the effect that the power of the President has had over both the legislature and the judiciary by using this power for a questionable purpose. Hence he has effectively begun to amass power in the same way (although not yet to the same degree) as these other famed leaders.
The US Constitution is clear in assigning to Congress the power to write the laws and to the President a duty ''to take care that the laws be faithfully executed." Bush, however, has used this proviso to leave a much greater mark on the duly enacted laws of the people’s representatives than what was perhaps intended by the Constitution.
He has declared that he has the power to set aside laws when they conflict with his legal interpretation of the Constitution. Further than this, he claims that if he has the power to decline to enact a piece of legislation then he must also be able to decline to enforce parts of acts. And this is where the contention lies, because it is at this point when the president ceases to act as merely a custodian of the will of the legislature in ensuring that “the laws be faithfully enacted”, and begins to take on a legislative role all of his own.For example, when Bush signed into law the McCain Anti-Torture Bill outlawing the use of torture on detainees, his signing statement, referring to the aims of the act in preventing terrorism, concludes that his authority as “Unitary Executive” and Commander-in-Chief of the armed forces will allow him to bypass the very law he is signing should he consider it appropriate – an action which formed a large part of the raison d’être of the legislation itself!
It is also in his very convenient interpretations of the constitution that he has assumed part of the role of the judiciary as well, rather than, as previously done, issuing a statement aimed at the processes of the executive to faithfully carry out the law. Quite simply he is telling everyone how to read the constitution – a role formally bestowed exclusively upon the Supreme Court.
To give you some indication: before Regan, only 75 signing statements were issued in 190 years of Presidents, mostly little more than commentary or notes on the ambit or aims of the acts. George HW issued some 180 and Clinton around 140 which, between them, challenged around 350 pieces of legislation. So it was not a new thing when George W started signing away.
However, what has changed, is that George W, in his 160-odd statements, has challenged over 1000 pieces of validly enacted legislation. And he has used these executive pronouncements to tell the people how these laws should be read and which parts should be ignored – roles which, in our system, are the exclusive domain of both elected representatives – parliament – and un-tenured stewards of legal principals – the courts.
The Australian system would not support the back-door power struggles of Tyrants like Bush. Giving power to a singular, popularly elected head of state just asks for these kinds of legal shenanigans. It is also why I believe the republic model presented for referenda in 1999 was the best model yet seen – by this country or any other. (And here I reveal my cryptic reference to republicans)
And why I wouldn’t want to live anywhere else.
