Tuesday, August 7, 2007

The U.S. Constitution has been orphaned by President Bush and Congress. The Founding Fathers would weep over the abandonment of their brilliant creation featuring checks and balances and muscular protections against government abuses.

An Aug. 2, 2007, executive order issued by Mr. Bush that blocks property of persons who present a risk of acting in a way that could undermine the sovereignty of Lebanon or its democratic processes or institutions is emblematic of the Constitution’s orphanage.

The order was authorized by the International Emergency Economic Powers Act (IEEPA), a statute that delegates vast legislative powers over national security affairs. IEEPA empowers the president to impose a financial death penalty upon persons in circumstances which he pronounces create an “unusual and extraordinary threat” to the foreign policy of the United States. Among other things, the president may block assets or void financial transactions.

The Founding Fathers would have frowned on Congress abdicating its national security powers. James Madison, father of the Constitution, worried that foreign threats would be exploited to undermine domestic liberties, especially by a president in times of war or conflict.

Article I, section 1 of the Constitution declares that “[a]ll legislative Powers… shall be vested in a Congress of the United States” to avoid combining lawmaking with law enforcement.

The United States Supreme Court, nevertheless, has upheld delegations of legislative powers to the president. But they must be accompanied by coherent limiting principles that restrict their exercise. In contrast, IEPPA’s delegation to interfere with private property in the United States or in the control of a United States person is open-ended. The president may declare an “unusual and extraordinary threat” triggering his power to interfere in virtually every quarter of the globe at his discretion.

The Aug. 2 executive order finds that Lebanon’s precarious circumstances threaten the United States, although the country is an ink blot on the national security map. The president hyperbolically determines “that the actions of certain persons to undermine Lebanon’s legitimate and democratically elected government or democratic institutions, to contribute to the deliberate breakdown in the rule of law in Lebanon, including through politically motivated violence and intimidation, to reassert Syrian control or contribute to Syrian interference in Lebanon, or to infringe upon or undermine Lebanese sovereignty contribute to political and economic instability in that country and the region and constitute an unusual and extraordinary threat to the national security and foreign policy of the United States.”

Mr. Bush could make comparable findings of political strife or convulsions unsettling to the foreign policy of the United States almost everywhere on Earth. IEEPA thus crowns the president with limitless discretion to make and to enforce prohibitions on financial assets.

In addition to violating the Constitution’s separation of powers, the Aug. 2 order flagrantly offends the Fifth Amendment’s prohibition on taking property without due process of law and freedom of speech. It blocks the property interests of any person the treasury secretary determines poses a “significant risk” of taking action whose “effect” could undermine democracy in Lebanon, contribute to the breakdown of the rule of law, support reassertion of Syrian control, or infringe upon or undermine Lebanese sovereignty. The vagueness of the standard enables the secretary to select persons for adverse action at whim, which contravenes the due process mandate of fair warning and of the First Amendment’s protection of free speech. For example, the secretary could freeze the assets of any person who shared the Middle East goals of Hezbollah and who was thus thought to create a “significant risk” of praising Hezbollah’s military action against Israel in an op-ed column, whose effect on Hezbollah’s popularity could undermine Lebanese sovereignty.

The secretary’s financial death sentences are imposed without notice or an opportunity to respond, the core of due process. They hit like a bolt of lightning. Any person whose assets are frozen immediately confronts a comprehensive quarantine. He may not receive and benefactors may not provide funds, goods or services of any sort. A lawyer cannot provide legal services to challenge the secretary’s blocking order. A doctor cannot provide medical services in response to a cardiac arrest.

The person subject to an asset freeze is reduced to a leper. And since the secretary is not obligated to publicize persons whose assets are frozen, their benefactors may unwittingly violate the executive order. That possibility brings to mind Emperor Caligula’s practice of posting laws high on the columns of buildings in hopes of tricking enemies into violations.

The order’s high-water mark of constitutional insult is its prohibition of any transaction “that has the purpose of evading or avoiding … the prohibitions set forth in this order.” In other words, a transaction fashioned to avoid running afoul of the law is illegal. To borrow from Mr. Bumble in “Oliver Twist”: “If the law supposes that, the law is a ass, a idiot.”

The Justice Department is customarily entrusted with vetting executive orders for consistency with the Constitution. Is the attorney general sleeping?

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda, an organization dedicated to restoring checks and balances and protections against government abuses. He is the author of the forthcoming book, “Constitutional Peril: The Life and Death Struggle of our Constitution and Democracy.”

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