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Refitting the Presidency to the Constitution
The 44th president will assume office with powers greatly enlarged by his or her predecessor. Drawing on recent precedents, the next president could launch preemptive wars with only minor interference from Congress, ignore the ancient right of habeas corpus and imprison political enemies, spy on American citizens without serious legal restraint, use practically any federal agency for political purposes, manipulate the press in ways inconceivable prior to 2000, corrupt the federal justice system for political gain, destroy evidence in criminal cases, use the Justice Department to prosecute members of the opposing party, offer lucrative no-bid government contracts to friends, expand the creation of private security armies, use torture, create secret prisons, assassinate inconvenient foreign leaders, circumvent laws with signing statements, and a great deal more. Such things are now possible because the system of checks and balances carefully written into the Constitution and explained in great detail in the Federalist Papers were weakened as a result of historical circumstances of the 20th century, but systematically and with great forethought by the administration of George W. Bush.
Said to be necessary in order to protect the country from terrorism, the expansion of presidential authority in truth was carried out by neo-conservatives who in the smoke and ashes of 9-11 smelled opportunity. The result is James Madison's worst nightmare: the unification of once carefully separated powers of governance -- executive, judicial, legislative -- in the hands of a single faction along with substantial control over the press, radio, and television and an extensive police and surveillance apparatus he would have loathed.
The surreptitious and perhaps fraudulent manner by which presidential powers were recently expanded has greatly diminished trust and respect for the office at home and abroad. But unless explicitly repudiated by the next president and prohibited by law, the precedents of the Bush presidency will stand. The expanded powers of one president typically are carefully guarded by their successors. Republican or Democrat the next president will be advised to distance the office from the more controversial actions of George W. Bush, but only as a matter of expediency, not for reasons inherent in the Constitution or the law. If so, we will have crossed the line into executive tyranny.
Acquiescence in the unlawful enlargement of presidential power is neither right nor necessary. The next president would be well advised to support the appointment of a special prosecutor to thoroughly investigate the possible illegalities involved in the recent expansion of presidential power not to exact political revenge, but as the first step toward recalibrating the presidency to the Constitution. Second, he or she should appoint a Blue Ribbon panel of experts in Constitutional Law and the presidency to make recommendations to Congress about the restoration of the office.
Many will disagree, saying that learning the truth would be unnecessarily divisive and a waste of time in the face of more pressing business. To the contrary, we the people, Republicans, Democrats, and independents alike, will need to know the truth in order to reestablish the rule of law in the highest levels of government and restore trust, credibility, and respect for the office of the president now tarnished by the systematic abuse of power and excessive secrecy. Otherwise, we invite worse abuses of power in difficult times ahead.
A restored presidency is a prerequisite to successfully meet the challenges of the emergencies posed by climate change, the end of cheap oil, and the effort to build a sustainable global civilization. In coming decades a great deal will be required of the American people. If we are to respond with renewed patriotism and vigor we will need to know that we are being told the truth and that we are being led by a president who is both enabled and constrained by the law.
David W. Orr is the Paul Sears Distinguished Professor of Environmental Studies and Politics, Oberlin College and James Marsh Professor at Large, University of Vermont.

58 Comments so far
Show AllThese are excellent ideas!
I'm actually in favor of: abolishing the presidency; abolishing the U.S. senate; abolishing the "Washington beltway" problem, by having elected officials (some sort of parliamentary system) live & work in their home districts, with conference calls, occasional committee get-togethers (moving the where around, complete de-centralization is needed); anything we can do to give more power to US rather than to them!
There is no statute of limitations for murder.
Bringing the real perp-i-traitors of 9/11 to justice through a scientific independent investigation must be top priority of next President and Congress.
Hey Rich, Good one! Maybe we should have a draft to fill positions in the government: President-Vice, Cabinet members and so on. We
certainly couldn't do worse than what we have now. Seems fair that if a person should be fit to go off to war that the same person should be fit to be the President.
We need to draft someone to stand behind the president of the moment with a cattle prod to remind them of the Constitution should they "slip" a little and forget habeus corpus.
The presidency will be brought back into the legal system when George is tried and convicted and jailed for any of his crimes.
The best way to address this was to impeach Bush/Cheney as Nader has been pushing.
Since Obama is against this, the next president has it that much easier to get away with even more than Bush has.
Sorry to say it, Professor Orr, but the entire "rule of law" concept is dead in the "greatest democracy on earth". It had to die precisely because it is an impediment to the rightful power and "exceptionalism" of the greatest nation's highest office -- especially that silly clause in the U.S. Constitution that would require the observance of ratified treaties as "supreme law" alongside the constitution itself.
Constraints that would obligate USA Incorporated and its CEO to conform to the same international laws and convenants governing civilised behavior that apply to lesser members of the global community will never be restored. Doing so simply would not be consistent with the imperial role that USans see as befitting the presidency of their great nation, not even when that unfettered power becomes a larger threat to their own liberty than those evil foreigners they fear and despise.
I would favor the "Confederate solution"---allow a president only one term of six year's duration; no re-election allowed. I would also want a provision (of my own creation) that no one can ever serve more than six years as president; thus, no vice-president can take over upon the death, resignation, or incapacitation of the president and then run for and win a full six-year term in his/her own right.
Wow--returning to the rules set up in the Constitution. Where have I heard this before? Oh, wait, it's what that Representative from the Texas 14th, Dr. Ron Paul, has been saying during his underreported bid for the Republican nomination.
That was so very correct, but I really wonder if prior to Jan 20, 2009 this issue should just remain bubbling in the background as a "non-issue".
Should Bush/Cheney feel more threatened, the shredders will be working even harder. To actually achieve a peaceful and respectful transition of power has got to be first and foremos.
During the campaign period the stated offering central to the platform needs to demonstrate great interest in reconciliation of the differences to heal from the present abuses of our constitution.
Somewhere during the past few months I read an article or letter by a gentleman who suggested that the new president make his first action in office the official negation and voiding of every Bush signing statement and executive order.
That would take care of a LOT of problems and return the presidency to its proper place.
McCain would never do that. Hillary? Hmmm. Maybe. Obama, I do believe so.
Why do you all think The Dems have done NOTHING about situation except make public whining sounds?
Since they report to the same paymasters who need the expanded powers for their nefarious, greed-driven activities, The Dems will probably try to expand the unitary executive even further.
I asked my member of Congress whether he worries that his refusal to advocate impeachment places the president above the law for all time. He couldn't give me a satisfactory answer, and so I'm running against him. www.fournierforcongress.org.
Very nice, Professor Orr. Too bad the U.S. is incapable of fielding a candidate interested in your proposals. The next president, no matter the party, will simply continue to build on what Lord Bush has wrought, and we will continue to suffer for it. There is no evidence to the contrary.
The current batch of political whores haven't only raped the Constitution. They have poisoned our whole political system. They are allowing corporate America to use the Constitution to run an empire, instead of build a country. They are also responsible for taking us backward in their well-advertised fraudulent war on terror. The Magna Carta and habeas corpus are now footnotes in our history books. This opens the door fascism, the final stages of a dying empire.
Hoa binh
"But unless explicitly repudiated by the next president and prohibited by law, the precedents of the Bush presidency will stand."
WE THE PEOPLE, should repudiate the actions of the Bush administration and WE THE PEOPLE must demand that the next president should do so, as well!
Not only must we "correct" this most horrific tyranny, we must also take responsibility for our complicity and make reparations to those damaged!
To Paul GA, Term limits are one of the answers to cleaning up the corrupt mess we have in government today. Six years is about right for the President as well as the Senate and the House. As for the Supreme Court they should abolish life time appointees, making their terms twelve years, staggering their terms so that there was a turnover of one justice each year. The position of Chief Justice would pass to the longest held position each year.
From the Orr article: "Drawing on recent precedents, the next president could launch preemptive wars... ignore the ancient right of habeas corpus... spy on American citizens...use practically any federal agency for political purposes, manipulate the press.. corrupt the federal justice system... use the Justice Department to prosecute... the opposing party, offer lucrative no-bid government contracts to friends, expand the creation of private security armies, use torture, create secret prisons, assassinate inconvenient foreign leaders, circumvent laws with signing statements, and a great deal more. "
All true.
But Clinton probably had such powers, and spent MOST of his administration fighting allegations that he'd broken the law on a real-estate deal in Arkansas, BEFORE he was president, that culminated in his impeachment for lying about cheating on his WIFE.
It's clear to me that BUSH/MCCAIN would have the powers Orr recites above, but Obama would spend most of his presidency battling allegations he was Jeremiah Wright's comrade-in-arms, took money from an Arab, is black, or any one of a million SINS liberals can commit in a Judicial branch of government now hopelessly skewed against them.
I hold with since1492: 'the final stages of a dying empire'
Republicans used to say, 'if you don't like it here, leave'
Now, I'm looking for where to go. America is toast.
Can Bush run as VP? Maybe he doesn't need to, since McBush has already handed him the torch.
Tell me. When has power voluntarily been given up?
WHO is supposed to 're-fit' the US Presidency?
Certainly not a congress that'll remain just as corrupt as it is now, matter who's elected president in '08.
Or would it be the mass citizenry who demand such changes in Executive power? The same blitheringly self-absorbed, politically passive citizenry that has stood by for the past 7 yrs as the Constitution was shredded and an illegal, morally insane, financially bankrupting war was undertaken in its name, right in front of everyone's face, by the most transparent of lies and liars?
How do you fix a governance crisis like this, when the potential fixers are themselves broken?
OK, maybe a truthful, brave president could lead The People to politically fix themselves; to re-awaken, and from there fix the structural flaws in how we [now, only pretend to] self-govern ourselves.
But then, are any of the top three presidential runners even talking about such ideas? Is the underlying governance problem even on the campaign radar?
At this point, we can only hope that if a vague reformer like Obama manages to get elected, then we the citizenry will come to our own rescue, through him.
If not something like this, then it'll be just more magical thinking -as the situation worsens into utter irretrievability.
ubrew12
But where?
I have been looking, in fits and bouts, for a new home. The best are difficult, if not impossible, to enter. (Add to that, English is my only language.)
If you find one, would you let me know?
When are Americans going to accept the fact that the office of President is bad? Hasn't the antics of Bush shown just how flawed the Republic is?
Get rid of the office of President before you get a really bad one that will pull your country down past the point of no return (assuming it's not already there).
Power corrupts remember. It's so elementary that even kindergarten children can understand it.
P.S. Relocate Israel? My blog explains why.
COPERNICAN said, "How do you fix a governance crisis like this, when the potential fixers are themselves broken?" Yes, friend, that IS the quintessential question. Examining how lies have come to take the place of truth, law and integrity to the extent they have in our nation, I have looked to my area of 30 plus years of useful inquiry: astrology. Neptune, the planet of sleep, dreams, deception, oil, illusion, escapism, drugs, and self-undoing is now passing through Aquarius, the SIGN of truth; whereas Uranus, the ruler of Aquarius, is passing through Neptune's more nefarious kingdom (it rules Pisces). Translation? The planet that supports truth (its orbit is 84 years) is transiting the sign of deception, while the planet of deception is transiting that of Truth. This is a once in a century or so phenomenon, and represents a celestial version of "The changing of the guard." I examined it in a book written for professional astrologers where I pose the not entirely rhetorical question, "How does the dreamer recognize THE awakened state."
ANNABELLE: I love your idea about a max of 12 years for Supreme Court Justices.
STEP 4: Good luck with your run for office!
Anyone out there familiar with the term "circle jerk", and its meaning?
I'm so happy to find Orr's excellent editorial on the need for citizens of the US to demand that the job description of president be returned to that defined in the Constitution. Our entire Federal governance, including the Congress, must be carefully evaluated according to the design and criteria set forth in the Constitution as amended and the Bill of Rights. Let's make our choice of presidential candidate based on who is most likely to lead this important task starting on day 1. As a nation and people, we have lost our way in the pursuit of democracy. Unless we get back on track, this comparatively young nation is a failed experiment.
Thank you, Annabelle.
As well as term limits, I would also do away with pensions for retired presidents and legislators unless they really needed the money; most of them are rich, anyway---why bleed the public coffers for them when the money could be put to better use?
Obviously impeachment was (is) the constitutional remedy for the abuses and violations of law spelled out by Professor Orr. The failure to impeach is an egregious dereliction of duty by our Congressional representatives, whose failure to protect and defend the Constitution is inexcusable.
In New York, there has been a "petition," of sorts, called the "resoration pledge," which calls on candidates to sign a pledge to restore the Constitution. Even so, how this would be accomplished without a constitutional amendment which prohibits the extended definiton of presidential powers claimed by the president as "commander-in-chief," is the real question.
I would like to see a tribunal convened at the national level which would investigate the grounds for impeachment, as well as war crimes, which Conyers still refuses to do in the Judicial Committee, under threats from chief collaborator Pelosi. The extended presidential primary has been a distraction from the real issue of emergence of the imperial presidency.
allthumz May 18th, 2008 5:36 pm
"Tell me. When has power voluntarily been given up?"
It never has as far as I know.
When has power been taken back? When the people take it. This has happened.
"A restored presidency" is not what is needed. The fundamental legal document should be modified to remove the president as the Chief Executive Officer. The Chief Executive Office should be elected from the House of Representatives which itself should be the only representative branch of government. No Senate, no "independent" executive. All power should reside in the elected representatives of the people put into office each two years in a general election.
The Chief Executive Officer should hold office only for two terms if reappointed by a two thirds reappointment from the House. A Chief Foreign Officer or Prime Minister should be a separate office elected from the House, for any term of years or at the pleasure of the House. Like the Chief Executive Officer they should be withdraw from office on a vote of "no confidence" by a simple majority of the House at any time.
The Supreme Court/Judisiary should be elected for only one ten year term. Two members, should be elected every mid term of the House election. Every ten years the court would have all new members.
The Supreme Court members can be expelled individually by a simple majority of a vote of the House, or in mass by a two thirds vote of the House.
In other words, the people through a direct vote of the representatives should have all the power of the government.
Recall or impeachment of the House members should be by a petition of the people, with only ten percent of the voting members of the state from which they were elected.
All campaign finance should be from the Treasury, only. All campaigning
will be held within 60 days to the election.
The states will be abolished. Only federal representative districts will be made of one hundered thousand citizens. One representative will be elected from each district.
See, it can be pretty easy to make a new system.
And a bill of rights giving complete power to the citizen.
Why not skip all the crap and get right to calling another Constitutional Convention?
If folks would pay attention to their State Legislature elections for the next couple of years, they could pack those bodies with people willing to fix this mess.
State Houses could then democratically vote for a call for a new Convention.
This would seem to me to be within the 9th Amendment powers granted to the individual States.
I suggest a small and independent-minded state like Vermont could lead the way in this.
Will this happen?
No, not while so many of the People have so lost their minds to TeleKnowledge that they can believe Obama will save them like -Bernice- above.
But all the tools we need are right there waiting for us to wake up.
-matti.
It's happened before, it can happen again.
http://en.wikipedia.org/wiki/Progressive_Party_%28United_States%2C_1948%29
The law already prohibits these activities and in many cases so does the US Constitution. What is needed is criminal prosecutions of many who served in the Bush administration as well as President Bush and Vice President Cheney.
Constitution? What constitution?
With the repudiation of the Magna Carta we have no constitution. It's back to a Constitutional Convention again and I can see absolutely no reason to keep the Red States. We may need to exchange them for repairs and reparations for what this government has done - so far.
Here's a thesis for someone's future dissertaton:
"Historical circumstances did not undo the American constitution so much as Dick Cheney judged the Constitution irrelevant to modern political forces and undertook to transform US executive power, his efforts probably beginning in 1988 but possibly as early as 1975."
Transform is a gentle, pedantic word. Subversion would be more accurate, but then I'm not going to write this dissertation.
Why is their fifty states, with many not even having populations approaching one million people, when a state like California, mine, has nearly 40 million people, and some of these so-called states are chock full of people who continually vote against their best economic interests? Less government would mean amalgamating some states together as one, like having all the New England states be New England, mid-Atlantic, Western Mountain, Southwest, etc. Getting rid of the Senate is an excellent idea too. The House is all that's needed, with members based on population as exists now. Ditch the electoral college too. The Executive should be like a secretary of state, while the House leader would be more of a leader of the country, as in parliaments in other countries. Unfortunately, these suggestions stand little chance of ever happening.
We don't need decider/dictators like Bush, and Cheney anymore, and anyone in the future trying the same scam, and these two as well, should tried, found guilty, and be subjected to the worst punishments for treason! Hear Gore Vidal's comments on Democracy Now last week to know what I'm referring! Barring the Congress not going after these two and their minions, can you visualize in DC what happened in Serbia some years ago when the people rose up and disposed of Milosovic, or a few years back when a similar situation arose in the Ukriane? Unfortunately, we Amerikans are just too docile to do what in Europe would be considered necessary to get rid of dictators, Spain being an exception, as Franco lived out his reign.
my qualifications for president,
at least 1 years training in massage therapy/chiropractic
at least 2 years work in the peace corps (must be completed before age 25)
at least 1 year culinary academy - and must cook dinner for everyone in the white house 3 times a year
at least has the usual education expected with nominees (phd etc) but not required
plays at least one insturment and sings
if a president truly, selflessly wants to recalibrate the office to the constitution - he will have the means to do so, its just about having the character to be elected into such power - and then relinquish it - its quite a personal matter - and sure panels and investigations will help - but for the next president - if they want to do it - they easily could -
i mean he/she will have the means to do so scuse me
Impeachment Banners on Highways on Memorial Day. Be there!
cmdrmsLvr May 18th, 2008 12:46 pm says:
"The presidency will be brought back into the legal system when George is tried and convicted and jailed for his crimes."
Exactly!! Only by bringing Bush, and Cheney (and their cohorts) to serious account (conviction and maximum jail time), can the legitimacy of the Constitution be restored. During this past eight year period, Bush et al have effectively trashed the Constitution, with the acquiesecence (by default) of both the Congress and the Juduciary. As a result, our Constitution no longer has any meaning in view of how easily it has been co-opted and overridden by the enemies of democracy. Unless the Constitution can be vindicated through its own legal process, with resulting punishment that fits the crimes committed at the highest level, the Constitution is not worth the paper it was written on. And without such vindication, America will surely drift further into a fascist state -one far worse than any prior.
Of course it will not happen unless the American public sweeps out of office the majority of incumbents who have been party to the excesses of the Bush administration. And they will have the opportunity - come November.
Don't hold your breath. The Democrats want the same power that the Republicans have garnered, which is why they have not pursued the obvious criminal violations perpetrated by Bush and his neocon colleagues. Only a 3rd party with a true interest in this country (vs. an interest in raw power and self-enrichment) can reclaim our country. With the press owned by neocon sympathisers, it ain't gonna happen.
Further to my previous post, I would say that if Obama is serious about fundamental change, the issue of bringing Bush and Cheney to serious account, and restoring the credibility of the Constitution, needs to be at the top of his list of issues for immediate action.
The sad thing is that Congress already has the power to reverse all this, if only they would do it. All the laws and reforms in the world aren't going to do a bit of good if the Dems won't get up off their collective butts and do what they're constitutionally mandated to do.
Let's "Remember in November" and hope presumptive President Obama will put into action some of the great ideas listed here, even if it means he will lose some of his presidential power.
gus May 19th, 2008 10:52 am says:
"Don't hold your breath.-- With the press owned by neocon sympathisers, it ain't gonna happen.
I share your pessimism !! When you look at the American public, you see a population that is "rolling over" to the imposition of a fascist state with hardly a wimper, and certainly without the need for the physical coersion required of the Nazis. It makes one wonder about "democracy" - doesn't it?
Yo Boo,
When the American people vote in an educated manner
(by being informed of who is running, what they stand for
& believe. Put the people needs first, do what is right
first, the needs of the nation & world & the race, first
Ah so, race/ Yep the human race + includes male & female
and yellow, brown, red, black, white.....what ever. Then
& only then will the human element that is in it today
be changed. Not self interest but sacrifice for the good
of all. To change our present form of government is
dangerous. Replace it with what? It is, presently when
done rightly & with justice the best form the human race
has. All others lead to injustice & unjust. The common
person has the VOTE, that alone is reason NOT to change
our form of government. Religous groups, the party, king
or only one leader always leads to an unjust government.
Till then it is YOUR duty to research, Think -then VOTE
for the best person - never the party or color or sex or...
use your reason, seek out the truth, go back ground.
I fear the
Punishment for a former President of the US and members of the Executive Branch found guilty of High Crimes and Misdemeanors should be House Arrest 7-10 years depending on the severity of the crimes maybe longer. restricted to a 50-100 foot radius of primary residence unless for medical emergency treatment, forfieture of all federal government pensions, fined 10 million dollars, restricted from ever profiting in any way from activities related to public offices held.
Any restoration of confidence in the gov't begins with re-opening the re-investigation into 911 by an unbiased perhaps non partisan commission with enhanced powers to subpoena information and eliminate obstruction.
There is far too much secrecy in gov't today. Gov't needs to do away with a private federal reserve and break up the media oligopoly and restore freedom of speech.
Absolutely it is necessary to review the military commissions act the Homeland security act, various presidential executive orders to make the government accountable to the people.
Also the role of lobby groups and the military Industrial complex in controlling gov't needs to be limited so the wishes of the people, like getting out of Iran are respected.
The unfortunate reality is the 3 remaining candidates are duds who will cater to the wishes of the invisible elite. Whoever is elected will accept the present state of government as the status quo and will move forward from there. The elite does not welcome anyone who introduce change. Expect more of the same.
The truly great statesmen and courageous leaders are all historical figures; the last being JFK. If you expect Obama or anyone else to pick up where JFK left off, inspite of the hollow praise from Caroline and uncle Ted, then dream on. Hope is just like the title of Obama's book "The audacity of Hope".
Corrupt systems do not reform themselves. But the system is destroying itself. No manufacturing, no infrastructure, no educated work force, no internal source of energy, hatred of the system by the locals, etc. Just wait 30 years and any half way reasonable nation will be massively more powerful than the US. Japan for example.
There will be no reform we have to ride out the death of the empire.
I see that Obama is wearing the required "flag pin" now, sold out just like he will sell out if he gets into the White House. He will not sign anything into law that reverses the shredding of the Constitution by the Administration. Who ever takes over the presidency will say "we need to put that behind us", and damned if that won't be what happens-except it really won't be "behind us" it will ever be with us.
We really need Barbara Jordan now. If you haven't seen her speech please view it:
http://www.americanrhetoric.com/speeches/barbarajordanjudiciarystatement.htm
If we had just a handful of people with the kind of integrity she had these 'neocons' would all be in prison right now.
All that we are is the Constitution. Without it, we are just a gang of thugs. bush called it "a goddamned piece of paper". I wonder what Thomas Jefferson, Abraham Lincoln, or Theodore Roosevelt would have said to him.
the adherance must be strict, accountability must be backed up with punishment, and the people that threaten our Constitution must be dealt with harshly. Unless that is done, we will wallow in weakness and corruption.