I’m a stickler for good language, especially for using words in an accurate and precise fashion: i.e., according to their publicly understood meanings and not for any other purpose. Now and then, readers ask why I’m such a fanatic about it. The answer has always been simple: I value clarity. We cannot have clear communications without being meticulous about the meanings of words as they are publicly understood.
Just as it exercises me when people use words sloppily, obscuring what they intend to convey, it incenses me when people deliberately misunderstand something that’s perfectly clearly put. Our first step on today’s path to anger starts with this observation from the celebrated T. L. Davis:
Since before the beginning of the inauguration the resistance was in action, drawing up legal challenges to every move Trump would make with his Executive Orders.
That’s an accurate observation, and no mistake. “The resistance” is determined to impede as much of the Trump / MAGA agenda as it can, for as long as it can. And quite a lot of men in office will do what they can to help them, by deliberately ignoring the plain meaning of the words “executive order.”
An executive’s order has a specific range of effect: those, and only those, who answer to the executive: his subordinates. The president of the United States is supreme over the executive branch of the federal government; therefore, all those who work in that branch answer to him. They who seek to challenge an executive’s order to his subordinates must find some way in which it violates the law. Therefore, any official who challenges an executive order must have a basis in law.
Apparently, that isn’t often the case.
You’ve heard the phrase “slow-rolling.” You know what it means. You’ve seen it applied to particular cases of misfeasance or nonfeasance. When the president has issued an executive order that “this shall be done,” but some time later his relevant subordinates have not done it, it can legitimately be suspected that they’re “slow-rolling” their acquiescence.
The delays in releasing the “January 6” inmates from detention in D.C. are approaching that status. Who is responsible for seeing to it that “this shall be done?” What are his reasons for not doing it? Are they in any degree reasonable?
The civil rights of the detainees are at stake, and more. Again, from T. L. Davis:
Now, these dungeon keepers in the DC gulag, Abu Ghraib on the Potomac, are trying to force these prisoners to sign NDAs to keep the abuses they suffered quiet before they are released, as a condition of release. That’s a level of arrogance and outright hubris that is difficult to top. The torturers are so emboldened by the injustice of their abuse that they’re trying to keep the hostages from relating those abuses or be beaten.
I’m confident that T. L. has his facts right even if he hasn’t provided citations. And I severely doubt that Trump’s pardon order included extracting Non-Disclosure Agreements from the detainees as a condition of release. So the gaolers keeping them behind bars, in the face of a presidential order for their release, are in violation of their obligations as members of the executive branch of the federal government.
That is perfectly clear.
The pardon power, which is expressly granted to the president in Article II of the Constitution, is also expressly bounded:
…he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
An “offense against the United States” is the Constitutional term for a violation of federal law. Thus, the president cannot pardon a convict for a state-level offense. Yet that has been done – and tolerated – many times since World War II. Indeed, many of the torrent of pardons Biden unleashed before exiting the White House were for state-level offenses.
Yet the wording of Article II, Section 2 is absolute, and absolutely clear. A power not granted is a power that cannot be exercised. Why are illegitimate pardons tolerated? Because the man granting them is leaving office? Or because they suit the preferences of the members of the political Establishment?
A comparable case arose when Barack Hussein Obama, at that time the president, announced that he would direct the IRS not to enforce the explicit terms of the Patient Protection and Affordable Care Act: specifically, the fine to be imposed for not purchasing compliant medical insurance. But hearken to Article II, Section 3 on the president’s obligations ex officio:
…he shall take care that the laws be faithfully executed…
Once a law has been passed by both Houses of Congress and signed by the current president, that president and all his successors are obligated to enforce it. There are no exceptions for political expedience. Yet Obama, anxious to placate a large group of his supporters, got away with it. Once again, it seems that a clear dictate of the Constitution was trumped by the political Establishment.
When I had Stephen Graham Sumner say:
“Miss Weatherly,” he said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
“My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
“I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
“The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.”
…I was expressing the same sentiments as this essay. Many of the readers of that novel wrote to express their yearning for such a president. Indeed, that’s the standard to which everyone in any legislature, or who wears a judge’s robe, should be held. But are they? How often? And what are we to do about it when they’re not?
Have some advice from a far greater writer than I:
[O]ne ought to recognise that the present political chaos is connected with the decay of language, and that one can probably bring about some improvement by starting at the verbal end. — George Orwell
The “decay of language” begins with disrespect for the public meanings of words.
