The American Royal Prerogative

The American Royal Prerogative

This Blog has a lot of law in it, hence it is pretty sluggish. But, please bear with me. It might reward the reader…and then again it might not.

I am an admirer of the American Constitution, although The Bill of Rights has its issues. Did the Founders really intend Americans to have the right to possess and fire all kinds of weaponry? I have often posed the question, what is to prevent me from driving down Fifth Avenue in a Centurion Tank? I suspect I would be in breach of all kinds of ordinances but not, it seems, the Second Amendment!

My admiration stems from brilliance in the way that Articles I, II and III of the Constitution restrict the three branches of government imposing on the others, the ‘checks and balances.’ The Legislature is bi-cameral and the House and Senate have wide and equal legislative powers, as well as oversight of the Executive. The President, as chief executive, too, has wide powers but is constrained by the Senate in many respects, for example appointments of cabinet members and ambassadors. However, the President can block legislation through use of a veto. The Judiciary has extensive powers through judicial review of Acts of Congress, in its role of the ultimate arbiter of what is constitutional. Thus no one branch of the American government can out-power the other. Or so I thought until last week.

When President Trump announced he was removing America from the Paris Accords, I assumed there would be something in the Constitution either to stop him or give him a fight. However, Congress has no oversight power, nor can the Courts restrain the breaking of a treaty. Further research led me to an interesting discovery. America joined the Paris Accords through Executive Agreement, signed by President Obama. The accords are not treaties, thus Senate approval was not required. Likewise, the Senate cannot demand the right to approve the breaking of a treaty, especially when, in legal terms, a treaty does not exist.

The President enjoys plenary powers. In the UK, we call this right the Royal Prerogative, a restricted power recognized in common law under which the British Prime Minister may exercise some parliamentary powers. Interestingly, Royal Prerogative powers were was last examined just a few weeks ago by our Supreme Court when it told Mrs May that she could not trigger notice under Article 50 of the Treaty of Rome (Brexit) without first gaining parliamentary approval.

In United States constitutional law, plenary power is granted to a body or person in absolute terms, without review or limitation and is not subject to judicial review. I have found few examples, mainly because the Constitution grants different, and occasionally overlapping, roles to the three branches of federal government. For example, the President cannot declare war without Congressional authority but the President is commander-in-chief of the armed forces. Under Article I, Section 8, Clause 3 (the Commerce Clause) Congress exercises plenary power over interstate commerce but the states are not precluded from passing interstate commerce laws.

During the New Deal, the executive branch wanted to provide electricity to seven states in the Tennessee Valley. To do this, the Tennessee valley had to be flooded with the loss of many homes. Using plenary powers, Congress created the Tennessee Valley Authority as a Federal Corporation. Congress effectively granted plenary power to TVA to set the price for electricity and charge customers, who had no right of review by state or federal government.

The President has few plenary powers in domestic terms but the right to grant reprieves and pardons is one and it is his alone. Sometimes the use of this power causes astonishment.  Gerald Ford reprieved Richard Nixon and George Bush (41) pardoned Caspar Weinberger, both to the surprise of the general public. Another area where plenary power is exercised is Immigration. Under the Plenary Power Doctrine, Congress, not the President, has power to make immigration policy and the Executive Branch is charged with enforcing the immigration laws passed by Congress. The Doctrine is based on national sovereignty, hence the Courts will rarely interfere in immigration matters. No wonder Mr Trump was shocked when the Courts threw out his executive orders on Muslims travelling to America.

Regarding the Paris Accords, since the President has plenary power over foreign affairs, he cannot be prevented from ordering America’s withdrawal. Congress and the Courts are powerless, even if the reasons given by the President are flawed. For example, Mr Trump claimed:

 

            “The green fund would likely obligate the United States to commit potentially tens of billions of dollars …Nobody else is close. Most of them haven’t paid anything, including funds raided out of America’s budget for the war against terrorism.”

 

Trump is wrong when he says other countries have not contributed to the Green Climate Fund. 43 governments have pledged to pay $10.3bn collectively, of which the US share is $3bn. He was also in error when he said, “Calls were made on developed countries to send $100bn to developing countries.” Actually, the sum is $10bn.

 

Trump alleged that under the Accords, China would be able to increase emissions by a staggering number for the next 13 years. China, a major polluting nation, has pledged exactly the reverse. So, is Trump alleging that China has lied and is going to continue to lie for 13 years? If so, he should say so, not hide behind a sloppy and wrong interpretation of the Accords: in short, Trump is lying.

 

Finally, Trump’s nose should grow like Pinocchio’s for saying in his Accords speech, “As someone who cares deeply about the environment…” If this was true, why is he seeking to revive America’s coal industry? I am waiting for the claims that what will be produced is clean coal. There is no such thing as clean coal. And why is Trump deregulating industry and reversing the Obama administration’s protective environmental laws? Simple. It’s not so much the jobs but profit. He likes to help industrialists and fellow businessmen. Never mind global warming and air quality.

 

No doubt, Trump expected a bump in the polls. Yet, according to The Washington Post, only 28% of those polled approved the withdrawal from the Accords, whereas 47% disapproved and 25% said they did not know. Many State governors, city mayors, and American business leaders have since announced they and their states and cities will observe the Accords and former Mayor Bloomberg of New York says he will personally pay America’s $15 million commitment to the UN Climate Secretariat so it can continue its work. I would like to think that Trump will be shamed by Bloomberg’s generosity. Well, that ship probably sailed!

 

 

On Thursday, former FBI director, James Comey, gave evidence to the Senate Intelligence Committee. Whilst presently Comey’s evidence did not disclose a “smoking gun” against the President, it raised huge credibility issues. Trump is an acknowledged and habitual liar. However, when Comey was asked why he wrote Memos documenting his meetings with Trump, he said, “I was honestly concerned he [Trump] might lie about the nature of the meetings so I thought it important to document them.” I have trouble with this explanation. Had Comey said he was following FBI standard practice, the explanation would have been credible. Exculpatory statements putting another in a bad light reflect on the person seeking to be excused. May I politely remind those who would see Trump impeached, the end game requires 67 Senate votes to convict. Unless and until the American public gets behind an impeachment process, the Senate votes won’t be there.