Constitutional Freedom

President Obama turned an otherwise tepid State of the Union address into a newsfest with his controversial critique of the Supreme Court’s recent decision overturning parts of a 63 year-old law.  In fact, President Obama could not “think of anything more devastating to the public interest” and went on to suggest that the ruling could jeopardize his domestic agenda.  However, the real issue is not whether corporations can inflate campaign coffers and essentially “win” an election for their candidate, but whether the President’s place is to criticize the Court’s decision. 

He called the decision “unacceptable”; however, more likely it was his response that was unacceptable.  Presidents’ clash with the Supreme Court is nothing new.  In fact, presidential opinions on the subject date back to the days of Thomas Jefferson and extend down to George W. Bush.  Nevertheless, it was Obama’s handling of the situation and his peculiar timing that created the real controversy.  Past presidents issued written statements of disagreement or responded with an opinion when asked; nevertheless, our current President found the need to single out a neutral party - the Supreme Court. 

Former New Jersey Supreme Court Justice, Peter G. Verniero put the public’s concerns with the President’s comment perfectly: “The court’s legitimacy is derived from the persuasiveness of its opinions and the expectation that those opinions are rendered free of partisan, political influences,” he said. “The more that individual justices are drawn into public debates, the more the court as an institution will be seen in political terms, which was not the intent of the founders.”  In short, the President’s actions were not wrong because he disagreed with the Court, but because he politicized the Court in a way that undermines its effectiveness and influence.  I recently heard a state supreme court justice speak and say the U.S. Supreme Court or any state’s supreme court is final not because it’s right but right because it’s final.  The Court’s obligation is to follow the law in a neutral non-partisan way.  The real concern is whether the President actually wants the Court to fulfill its obligation or his political agenda.

“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, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Much of what is laid out above is familiar to most Americans.  We recognize the President as the Commander in Chief, as one having the ability to pardon, and as one who nominates ambassadors and supreme court justices.  One of the more controversial issues today is the President’s ability to appoint “inferior Officers”, which we now know as Czars.  President Obama has decided to name his inferior appointments Czars.  This name seems counter to the spirit of Americanism.  It is the opinion of the author that the President should not use this title for these appointments.  Additionally, the constitution does allow the President to make inferior appointments without consent of congress; however, President Obama has taken this privilege to a new level.

For example the President has at least 32 Czars; many of which have responsibilities that could be managed by departments already in existence, with leaders who are approved by the Senate.  It almost appears that President Obama is attempting to operate within the technical writing of the constitution, but is ignoring the spirit of the writing in the constitution.

“The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.”

Article II is about the executive branch of the the U.S. Government.  At the time of this writing, Barack Obama is currently the President and has been duly elected in the manner set forth in the Section 1.  There has been much debate with regards to the system known as the “Electoral College”.  For example, in 2000 the popular vote was in favor of Al Gore, but the Electoral College vote favored George W. Bush.  This was due primarly to a “winner take all” assumption in each state. 

It is the feeling of the author that ultimately there are some significant advantages to the electoral college that make it preferential over any other system.  Let me use a game of numbers to explain:

Let’s suppose the U.S. did not have the electoral college and that the President was determined by a series of run-off elections.  Meaning that there were multiple rounds of elections and ultimately when a majority of the country voted for 1 candidate then that candidate was the president.  Let’s begin with 10 candidates 4 from “majority parties” such as the Democratic Party or Republican Party and 6 from alternative parties, such as the Communisty Party, Independent Party, Socialist Party, Constitutional Party, Green party, etc.  Now let us assume that the 4 from the “majority parties” split their voters and that the Communist Party acquires 15% of the vote and that this is the most votes for one candidate.  Followed by 12% for the Socialist party, 10% for the green party and 4 or 5% for all the remaining candidates.  The field is eliminated to the top 4 candidates and we are left with no single candidate from a “majority party”.  The country elects a candidate that is ultimately only representing 10% or less of the population.  This is not majority rule as intended but rather minority rule. 

Now let’s review this scenario from the perspective of the current system.  First, no party presents more than 1 candidate, thus eliminating a party split.  Second, the winner of a state is awarded the entire states electoral votes, thus encouraging a focus on winning a majority in each state.  As such it is very unlikely for a party’s candidate that represents only a small portion of the general population to actually win the election, thus preserving the rule of the majority.