March 19, 2012

OKAY, PEOPLE KEEP WRITING ME ABOUT THIS EXECUTIVE ORDER ON “NATURAL RESOURCES PREPAREDNESS.” It’s not some sort of new Obama power grab. Instead, it’s just an update of an old power grab.

It’s not that such powers are necessarily a good idea, but they’re not new. That reminds me of what I wrote back during the Bush Administration: “Some of the backlash against things that the Bush Administration has been doing probably stems from a lack of understanding of just how bad the law has always been in many areas, leading to a false impression that things represent shocking new departures from the Constitution when they really represent . . . er, . . well-settled departures from the Constitution. Search, seizure, and privacy law, of course, was already seriously damaged by the Drug War long before Bush ever took office, something that tends to be forgotten in discussions of FISA or the Patriot Act. But it goes beyond that sort of thing. Sweeping Executive authority, for example, is nothing new.”

Follow the link for the horrifying story of U.S. v. Spawr Optical, where a felony conviction resulted from violating an expired statute because that statute’s provisions had been continued by Executive Order. An order emanating from President Gerald Ford. Excessive Presidential power is nothing new. I’m not sure I buy Jack Goldsmith’s thesis that presidents today are actually more limited in their authority than they used to be — though I’m not sure it’s wrong, either — but these kinds of orders are not evidence of a new form of tyranny. Maybe an old one, though.

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