Polly Dogood

Upon a Law that Binds Only When the President Pleases

Wherein the Author recalls why England sent a King packing in 1688, confesses that her Grandpapa was once on the wrong Side of the Question, and explains why a Law that may be switched off for Friends is only Corruption by another Name.

To the Readers of this Publick Blog,

In 1970 Congress wrote into the Clean Air Act a Sentence of remarkable Plainness: "any person may commence a civil action on his own behalf" to enforce it. Any Person. Not any Official, not any Friend of the Administration: any Person whose Air was fouled. A Republican President, Mr. Nixon, signed it on the last Day of that Year.

This Summer a Company belonging to the richest Man in the World was sued under that Sentence, by Neighbours of the nearly sixty Gas Turbines which, they say, it runs without Permits in Southaven, Mississippi, to power its great Computing Machine across the Line in Memphis. The President's Justice Department did not argue that the Pollution was lawful. It argued instead that the President may simply end the Suit: that a Right Congress gave to every Person may be withdrawn by one.

On the 19th of October a federal Judge told them no. She could find no fair Reading of the Act that "would give the United States the right to unilaterally dismiss a citizen suit." I was glad to read it. But I should like my Readers to understand why the Question was ever asked, because it is a very old Question, and our Ancestors paid dearly for the Answer.

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The King who dispensed with the Law

In 1686 King James the Second wished to place his Friends in Office, and Parliament's Law forbade it. So he simply excused them. He granted one Sir Edward Hales a Dispensation from the Law, and when the Question came to his Judges, having first dismissed the Judges who would not agree with him, he got the Answer he wanted: that dispensing with the Laws was an "inseparable prerogative" of the Crown, and the King its "sole judge."

Two Years later he was gone, and the English wrote into their Bill of Rights of 1689: "That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall," and that "the pretended Power of Dispensing with Laws" as "assumed and exercised of late" was illegal too. A Law that the King could switch off was no Law at all. That was the Lesson of the Glorious Revolution, and every Lawyer in the Colonies knew it by Heart.

A Confession about Grandpapa

I promised always to be honest, so I must tell you this. On the 4th of June 1787, at the Convention in Philadelphia, Mr. Pierce Butler of South Carolina moved that the President be given "a power to suspend any Legislative act." And the Delegate who seconded the Motion was my Grandpapa, Dr. Franklin.

Mr. Gerry of Massachusetts rose at once to object that "a power of suspending might do all the mischief dreaded from the negative of useful laws." Every State present voted against it. Ten to none. Grandpapa was outvoted by the whole Convention, and the Convention was right. I am proud of him for many Things, and prouder still that the Republic he helped to build did not take his Word for everything.

Instead the Framers wrote that the President "shall take Care that the Laws be faithfully executed." Faithfully executed. Not selected, not suspended, not dispensed with for his Friends.

The Supreme Court said so plainly in 1838, in a Case called Kendall. To read the President's Duty to execute the Laws as a Power "to forbid their execution," it said, "is a novel construction of the constitution, and entirely inadmissible." It would be "vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution." Those were the very Words: a dispensing Power. The Court knew exactly which King it was talking about.

The Dispensations of our own Day

I wish I could say the Question had stayed in 1686.

He has withheld Money that Congress appropriated. The Government Accountability Office, the Congress's own Auditor, has found again and again since last Year that the Administration broke the Impoundment Control Act, holding back Funds for Head Start, for medical Research, for Libraries and Museums, for Disaster Relief. That Act was written in 1974 because President Nixon had tried the same Trick.

He has cancelled Spending by waiting out the Clock. Twice now he has sent Congress a Request to cancel Funds so late in the Year that the Money would expire before Congress could answer, a so-called "pocket rescission." The Auditors have said it plainly: "A pocket rescission is illegal."

He has declined to enforce a Law for the Better Part of a Year. Congress passed a Law requiring TikTok to be sold or shut down, with a single brief Extension allowed. He ordered his Attorney General not to enforce it, and then extended that Order, and extended it again, for about a Year in all.

And he has claimed, in a federal Court, the Power to end a Citizen's Suit that Congress expressly authorized, until a Judge reminded his Lawyers that the Act says "any person."

In Fairness, which I always try to keep: when he waived the Russia Sanctions this Month, he used a Waiver that Congress itself wrote into the Law. That was lawful. It shows only that a Congress which writes its Laws with a Back Door should not be surprised when he walks through it.

What Congress has done about it

Fifty-three Years ago this Week, on the 24th of October 1973, President Nixon vetoed the War Powers Resolution. Two Weeks later Congress overrode him, two hundred and eighty-four to one hundred and thirty-five in the House, and seventy-five to eighteen in the Senate. A Congress of that Day knew its Powers and used them, against a President who did not much care for them.

The present Congress has the very same Powers: the Purse, the Override, the Subpoena and, if it comes to it, Impeachment. It has simply chosen not to use them.

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Here is the plainer Version.

A Law that binds only when the President pleases is not a Law. It is Corruption: Corruption of the Law, which was meant to bind every Man alike, and Corruption of Decency, which forbids a Ruler to hand out to his Friends what belongs to all of us. Every Courtier of King James understood where such Dispensations go. They go to Friends: to the Company with the Turbines, to the Donor with the Contract, to whoever has lately pleased the Throne. The rest of us must obey the Law in full, and breathe what the Turbines leave us.

A Man who switches off the Laws enacted by the People's Congress is not a President. He is a Tyrant, whatever Title is painted on his Door, however gilt it might be.

The English had to dismiss a King to settle this Question. We need only dismiss a Congress, on the 3rd of November, and send one to Washington that remembers the Laws it writes are meant to be obeyed, by the President most of all.

P.S. I am told the Judge in Mississippi read the Act and found the Words "any person" quite clear. I have read it myself, with my Spectacles on, and must agree. It is a comfort that in some Corners of the Republic the Laws are still read before they are dispensed with.