Executive odor

A couple of posts down, we discussed the ominous new executive order which removes all property from any U.S. "person" determined to have aided violence in Iraq. The wording is open to broad interpretation: The target can be anyone guilty of "undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people," as defined by the Bush administration.

The order prohibits prior notice to any person Bush feels has contributed to his problems in Iraq. Anyone donating to any legal defense fund organized on behalf of an affected person will also lose everything he or she owns. Moreover, the order prohibits:

the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order, and (ii) the receipt of any contribution or provision of funds, goods, or services from any such person.

So let's say that someone considered guilty (by Bush, not by a judge or jury) of fomenting violence in Iraq does a little web site design for your organization. ALL OF YOUR PROPERTY CAN BE TAKEN AWAY, even if you knew nothing about the individual who did the design work.

How can we overturn such a draconian executive order?

We can't. At least, not if we speak in practical terms.

If we are speaking in technical or historical terms, an EO can be overturned in two ways.

First, the court may rule against it on the ground that the EO makes law rather than interprets or enforces law. The Supreme Court has done so on two occasions, under Truman and Clinton.

Here's where matters get cute. Nearly every executive order offers room for the argument that the President has made a new law without the involvement of Congress. The current order is certainly open to such a challenge.

So why would the Supreme Court focus on one EO and not the others? What makes one order a no-no while all the other ones are yes-yesses?

Politics.

And politically speaking, the Supreme Court is on the side of the Republican Party. So scratch that option.

The second possibility: Congress can refuse to fund whatever it is that the President has ordered. Sounds easy, right? Here's the problem: The President can veto any bill sent to him by Congress, including any bill that makes an EO unenforceable. Congress can override the veto, but doing so requires a two-thirds majority. Very difficult to accomplish, that.

Could Bush use the latest EO to go absolutely freaking nuts? Could he, in short, institute the long-dreaded Big Blogger Roundup?

Maybe; maybe not. If his actions become too outrageous, then a two-thirds majority becomes politically possible. Of course, impeachment would probably come first. But if all Republican congressfolk remain loyal to party and prez, Caesar will have done the Rubicon thang and all of our current democratic legalities may seem quaint.

The good news: If a Democrat gets into the White House again, both sides of the aisle in Congress might be willing to contemplate the idea of restricting Executive power. The Murdochian hordes love the idea of weakening the Presidency -- if the President has a D next to his name.

I say: Let's take that opportunity. The whole EO system needs re-thinking.

Of course, we would have to proceed with caution, since EOs have accomplished many good things over the years. The Louisiana Purchase. The Emancipation Proclamation. Integration of the military. School desegregation. The Equal Employment Opportunities Commission. FEMA.

But Dubya's EOs tend to convey a distinct "Emperor Palpatine" vibe. For example, Executive Order 13233 placed a dark curtain of covertness over Presidential Records. Historians will have the devil's own time (was that just a figure of speech?) trying to acquire a behind-the-scenes view of what Bush and Cheney have been up to.

My suggestion: Congress should assume the right to determine whether an EO has usurped its legislative function, a determination to be made via a simple majority. Is this course of action constitutional? I'm not sure. Then again, the very concept of the executive order is of questionable constitutionality.

The most recent EO has a precedent. Last year, W signed a similarly-worded order seizing property from anyone contributing to violence in the Cote d'Ivoire. Few paid attention to that one.

I hope you're paying attention now!