Please note – The information contained in this blog entry, while I believe it to be accurate, comes from so many sources, some conflicting and with less than clear motives, that I cannot guarantee its accuracy. I have tried to find multiple sources for each item but that isn’t always possible and sometimes I must rely on the words and works of others, particularly since I do this in my spare time. Please let me know if you find something you know to be incorrect. I do apologize in advance for the lack of…polish to the writing.

In response to the terrorist attacks of September 11, 2001, the Department of Homeland Security was created. Whereas the Department of Defense is charged with military actions abroad, the Department of Homeland Security works in the civilian sphere to protect the U.S. within, at, and outside its borders. Homeland security policy is coordinated at the White House by the Homeland Security Council which, in turn, answers directly to the President. It is the third largest Cabinet department behind the Department of Defense and Department of Veterans Affairs.

The Insurrection Act of 1807 is the set of laws that govern the President’s ability to deploy troops within the United States to put down lawlessness, insurrection and rebellion. The law was written to limit Presidential power as much as possible, relying on state and local governments.

The Posse Comitatus Act of 1878 prohibits most members of the uniformed armed services from exercising state law enforcement, police or peace officer powers on non-federal property – the states, their counties and municipal divisions.

During Bush’s reign both of these laws were repeatedly amended to remove restrictions on Executive power. The Defense Authorization Act for Fiscal year 2007 expanded Presidential power to declare martial law under revisions to the Insurrection Act and take charge of National Guard troops without state governor authorization when public order has been lost. This same act gave the President the power to declare a national emergency at his discretion and to employ the U.S. military to suppress any group that obstructs or opposes the execution of the laws of the United States or impedes the course of justice under those laws.

The Office of Legal Counsel, which assists the Attorney General as legal advisor to the President, prepared a series of memos in which it was asserted that the Fourth Amendment restriction on unreasonable searches and seizures does not apply U.S. forces deployed inside the country. A footnote in one of these memos argued that Fifth Amendment guarantees of due-process rights “do not address actions the Executive takes in conducting a military campaign against the Nation’s enemies.”

These changes essentially gave the President the power to declare martial law at his discretion, including the suspension of Habeus Corpus and most of the rights guaranteed by the Constitution, and the authority to use the full force of the United States military against any one, any time and any place without Congressional approval, in both foreign and domestic operations.

The “War on Terror,” we were repeatedly told, is different than any other war in history because it is not against any grounded nation or single army. This would be a war with a global theater of operations against small pockets of well-armed, well-trained, guerilla fighters. The President, it was explained, must have the authority to go after these people wherever they hide and implement martial law and military control over any area necessary to insure our safety – including inside the United States.

During this time the Bush administration authorized the National Security Agency to monitor, without warrants, telephone calls, e-mails, Internet activity, and text messaging, and other communications involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies with the U.S. The exact scope of the program is not known, but the NSA is or was provided, total, unsupervised access to all fiber-optic communications between major telecommunication interconnect locations. The legality and extent of those operations is still in question, however, the Protect America Act of 2007 authorized the monitoring of all electronic communications of people in the United States without a court’s order or oversight, so long as it is not targeted at one particular person “reasonably believed to be” inside the country. The Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 granted immunity to the telecommunication companies involved in the surveillance. It also allows the government to conduct surveillance of any person for up to one week without a warrant, an increase from the previous 48 hours, as long as the FISA court is notified at the time the surveillance begins and an application to submitted to the court within that week.

Effective October 1, 2008, the 3rd Infantry Division’s 1st Brigade Combat Team will be under the control of U.S. Army North, the Army service component of Northern Command (NORTHCOM), as an on-call federal response for natural or man-made emergences and disasters. This marks the first time an active U.S. Army unit will be given a dedicated assignment to NORTHCOM. This formalizes a role for the use of federal troops within the U.S. during major public emergencies and disasters.

In United States constitutional law, plenary power is a power that has been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power. A signing statement is a written pronouncement issued by the President upon signing a bill into law. These statements do not appear to have legal force by themselves, although they are published in the Federal Register. As a practical matter, they may give notice of the way the Executive intends to implement a law, which may make them more significant than the text of the law itself. No Constitution provision, federal statute, or common-law principle explicitly permits or prohibits signing statements. In essence, the statements are a means in which a President can selectively enforce only those portions of a bill in which he approves while ignoring those in which he disapproves. Under President Bush these statements often include assertions that the President will not follow the statute based on his belief that it interferes with his plenary authority. Historically, signing statements have been relatively rare. President Bush has issued more signing statements than any President in our history. In fact, he issued more than all previous Presidents combined – in just his first term.

President Bush has asserted that the Executive has the plenary authority to conduct domestic surveillance programs such as those discussed above without receiving either a warrant or other FISA court approval. His administration has argued that Congress cannot limit or check the President from exercising his plenary authority and “inherent” powers.

In addition, President Bush has asserted plenary power and directed his advisors to ignore Congressional subpoenas, subverting Congress in its ability to provide oversight to the Executive branch. I believe this is the first time in U.S. history that a President has made such a claim.

NOTE: Under Democrat control, Congress, via the Defense Authorization Act for Fiscal year 2008 has (at least temporarily) repealed most of the changes to the Insurrection and Posse Comitatus acts. It is possible that some or all of the other extensions of Executive power have been removed but I only found these.

The expansion of Executive power under President Bush has been enormous. The Founding Fathers, when writing the Constitution, sought to implement a series of checks and balances to prevent too much power from accumulating in any branch of the government. This system was used to prevent one branch from becoming supreme by means of rules and procedures that serve to limit each other. As it was conceived, our government would consist of three branches: Legislative, Executive, and Judicial.

What we have seen under the Bush administration is the Legislative branch rendered impotent. Even a Democratically controlled Congress has only had limited success in slowing the growth of executive power. The checks and balances system has become unstable. With President Bush leaving office in a few months why does all of this matter? It matters for two reasons: 1) The actions of a President sets precedence for future Presidents and 2) the next President will have unprecedented control over the Judicial branch.

The next President, in his first term in office, will likely appoint four justices to the Supreme Court and two more if he serves a second term, potentially six of the nine justices. In addition, the next President will appoint several judges at the district level and to the extremely powerful court of appeals. This alone is enough to give any President an almost unprecedented ability to direct the political direction of the country for the next several decades through his nominations. Typically, a President cannot become too radical in his selections because all nominees must be approved by Congress.

However…

Barack Obama, if not an outright Marxist, has at least has some very Marxist leanings. If he is elected tomorrow he will likely have a Democratically controlled House and a filibuster proof Democrat majority in the Senate. This will effectively eliminate any restriction on who he nominates to these judicial positions. In his first term in office, Barack Obama may appoint enough federal judges to have “liberal” control of ten of the thirteen Circuit Courts of Appeal and the Supreme Court with almost no restriction on who is nominated.

Even if everything he did was with the best intentions and the interest of the nation in his heart, President Bush has set the table for our first pro-Marxist President to be the most powerful executive to ever hold the office. The remaining power in Congress will be controlled by a complicit Democrat majority and he will have the ability to pick and choose the judges at every major federal court. One man is going to have direct control or indirect influence over all three branches of our government and an active, deployed war-trained Army brigade at his disposal to suppress any ‘pubic emergencies.’

Perhaps I am paranoid, but no man should have this kind of power. George Washington was the last man with that much power and control over our government. It is a testament to his uncommon character that he refused the power that could have been his. He could have made himself king, in authority if not in name. Could you turn your back on unlimited, unchecked power? I do not know if my resolve would be as strong as his. He remains one of the few men in history to refuse to allow his citizens to make him a monarch/dictator when it was in his power to become one. Unless something incredible happens tomorrow, the people of this country are betting that Barack Obama has the wisdom and character of George Washington. God help us all if he doesn’t.