David R. Henderson  

Obama Pulls a Cheney

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You may recall that I passed this law called the Affordable Care Act to sign people up for health care.
This is from a transcript of President Obama's remarks on Friday to the SXSW (South by Southwest) conference in Austin, Texas.

Notice something interesting? Obama claims credit for passing a law. Actually, he didn't pass it. He signed it.

Why would he make such a mistake? Was it that he just flubbed his lines? I don't think so. I think the reason is more ominous: that Barack Obama, like the vice-president who preceded him, is subtly trying to change Americans' views about what the Constitution says. I think he wants to get Americans thinking that U.S. presidents, and especially this one, can pass laws.

That reminds me of something similar, and even more glaring, that Vice-President Cheney did in his graduation speech at West Point. Cheney said:

On your first day of Army life, each one of you raised your right hand and took an oath. And you will swear again today to defend the United States against all enemies, foreign and domestic. That is your vow, that is the business you're in.

That's not what they swear at all. Here is their actual oath:
I (insert name), having been appointed a (insert rank) in the U.S. Army under the conditions indicated in this document, do accept such appointment and do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

Why would Cheney have done that? As I said in this piece at the time, I don't think it's an unintentional mistake, not with the way Vice-Presidents' and Presidents' speeches are vetted with a fine-toothed comb. I think he wanted to lead people away from the importance of military people pledging to defend the Constitution.


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COMMENTS (18 to date)
Sieben writes:

Do you have any reason to believe these sleight-of-hands are "new" phenomena? Political figures have always overstated the importance and glory of the state.

David R. Henderson writes:

@Sieben,
Do you have any reason to believe these sleight-of-hands are "new" phenomena?
No. Look at the Gettysburg Address, for example.

bill writes:

I don't know either of their intentions.
I have to say, now that I have read that oath, I'm not sure I like it at all. I don't believe the Federal government should turn the military against domestic opponents of the Constitution.

Tom West writes:

I think you are swimming against tide here.

For better or worse, both the Republicans and the Democrats want to pretend that ACA (aka Obamacare) is the entirely the result of the president's efforts.

Your point is, however, quite correct. I find these re-wordings perturbing.

ThomasH writes:

As submitted to "Annals of Overinterpretation."

I have no idea what Cheney mens, but I guess that Obama was taking the credit (or accepting the blame, it you don't like ACA) for getting Congress to accept the Heritage Foundation health insurance reform plan.

R Richard Schweitzer writes:

Well, we can niggle (as the past indicates).

At least Cheney did not invoke "I."

There is a difference in the emissions of hubris by those reliant on charisma.

Perhaps the oath (dated??) should be up dated to read ". . . to defend the United States of America and the Constitution by which it is established . . . "

Then we can all get a good night's sleep until the next miscue.

We probably never will fully escape hubris - but what will save us from charisma?

BC writes:

bill: "I don't believe the Federal government should turn the military against domestic opponents of the Constitution."

I believe domestic enemies refers to both those that would try to seize power unconstitutionally as well as those in government that would assert powers unconstitutionally. I understand the concern with using troops against domestic persons, but putting down a coup would seem like a legitimate use of the military.

In any event, I think the point of the oath is that the chain of command is determined by the Constitution, and that's why there is an important distinction between defending the Constitution vs. defending the United States. Some people might interpret defending the US as defending the US government but, if the US government is giving an unconstitutional order, then the military has an obligation to not follow that order.

Normally, we might not appreciate the subtle differences. However, we now have a candidate for Commander-in-Chief that has seriously asserted that he would give illegal orders to our military and expect them to follow such orders.

BC writes:

"Barack Obama...is subtly trying to change Americans' views about what the Constitution says."

I don't think it's that subtle or surreptitious. I think he genuinely (and openly) believes in the Imperial Presidency, that his election earns him a mandate to force his legislative priorities through Congress. That's why he openly labels Congress "obstructionist" whenever they don't pass the legislation he desires.

The strange part is that some of his supporters will deny that he is an Imperial President or that they support the Imperial Presidency and, at the same time, attach the "obstructionist" label to the Congress. The obstructionist label *implies* an Imperial Presidency. If one agrees that the Congress has sole legislative power, then how can they be obstructing the President's legislative agenda? By definition, the Congress can never obstruct its own agenda.

BC writes:

In Obama's (not much of a) defense, I would say that he is largely reflective of an Imperial Presidency culture rather than a surreptitious promoter of it. As a US Senator during the Bush administration, he frequently criticized the Imperial Presidency.

I would have hoped that the prospect of a Trump presidency would have given rise to a bipartisan anti-Imperial Presidency movement by now, but it doesn't seem to have. Many Democrats and Republicans have criticized Trump personally, but I haven't heard many suggest that we should now more strictly limit presidential powers in general. Whatever one thinks of Trump, he does meet the minimum Constitutional requirements of being a natural born US citizen over 35. That means he is eligible to hold whatever powers we vest in the office. For whatever reason, many of his sharpest critics seem unable to reach the conclusion that, therefore, we shouldn't vest too many powers in that office.

Obama is able to advance the Imperial Presidency because too many people, when thinking about appropriate limits on Presidential powers, imagine those powers held by a President that they like instead of a President that they hate.

Surely Prof. Henderson is mistaken. If the current President, a Professor of Constitutional Law as we are frequently reminded, says that Presidents pass bills and the next President, the recipient of a very classy Ivy League education (as he frequently reminds us) and founder of a prestigious (not to mention, classy) university, says that it is the judges that sign the bills, not the President, who are we to disagree?

Thomas B writes:

Reminds me somewhat of the number of people who believe - because they were told in school - that driving is a privilege, not a right.

It's a right, and it has court rulings to back it.

It's a right that can be reasonably regulated, but - unlike a privilege - it cannot be arbitrarily denied.

But regulators everywhere discovered an interesting thing. To teenagers of the past, the driver license was a major step to adulthood and autonomy. So regulators took the opportunity to shape their relationship early, hammering home that this adult autonomy was a privilege granted by regulatory benefactors, who could also take it away at will.

Noah writes:

Trivial argument, while strictly true. He invested nearly his entire political capital, and possibly more, to get the ACA through.

The point that presidents do not in fact pass laws is well worth highlighting though.

Mark Bahner writes:
I have to say, now that I have read that oath, I'm not sure I like it at all. I don't believe the Federal government should turn the military against domestic opponents of the Constitution.

I disagree, mainly because you're misinterpreting the oath. Their oath is to "support and defend the Constitution of the United States against all enemies, foreign and domestic,..."

Their oath is not to "turn against" domestic opponents of the Constitution. An analogy would be that if an enemy combatant pulled the pin on a grenade, and a member of the military used his or her body to shield fellow soldiers from the blast. That would be "preserving and protecting" those fellow soldiers, not "turning against" the enemy.

A plausible scenario that hopefully will never come to pass is that Donald Trump has vowed to give orders to "take out" (murder) families of (alleged) terrorists. There is nothing in the Constitution that gives the President the power to order the execution of civilians, and hopefully any member of the U.S. government would follow their oath and refuse to carry out such an order. (Though obviously a member of the military would be put in extreme jeopardy by refusing to follow a direct order from the Commander in Chief.)

Mark Bahner writes:

"Perhaps the oath (dated??) should be up dated to read ". . . to defend the United States of America and the Constitution by which it is established."

Please don't! :-)

That would create conflicting loyalties. For example, suppose the citizens of Hawaii, Alaska, or any other state vote to secede from the United States.

A military person pledged to defend both the United States and the Constitution would have a potential conflict. A military person pledged to support and defend the Constitution would have no such conflict. (Although, given the Constitution's silence on such matters, determining the proper course of action would no doubt be difficult.)

Daublin writes:

My first read of that quote is that he was saying it the way a lobbiest would brag about passing a law. They mean they worked the political process to effect a change that they want.

I'm not sure I'd take credit for ACA, after the way it has gone.

Robert Schadler writes:

Think you have a subtle point well worth making.
But since we're making fine points:
But not sure Cheney as Vp can "precede" a President

Thomas Strenge writes:

bill,
remember, all government authority comes from the Constitution. It is the foundational document. Remember, when these United States were created, the Founders believed in rule of law. Military members, as the most forceful expression of governmental power, are bound to follow the law, not some winner of a popularity contest, nor some amorphous idea of "religion" or "country".

LD Bottorff writes:

I think he genuinely (and openly) believes in the Imperial Presidency, that his election earns him a mandate to force his legislative priorities through Congress. That's why he openly labels Congress "obstructionist" whenever they don't pass the legislation he desires.
And, he stated that Congress should do their job and pass his budget.
Congress's job is to reflect the priorities of their constituencies. The saying used to be "The President proposes, the Congress disposes.

BC's second comment is also on point. Very few people are criticizing the increasing power of the presidency; they just worry about that power being in the hands of the current candidate that they don't like. I don't like any of them, so I'll vote for the one I think will do the least damage.

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