The issue with arbitrary power is not necessarily what it’s used for but that it’s arbitrary.
Arbitrary power has been used for good, many times. There have been innumerable Kings and Queens and Emperors and benevolent rulers who’ve possessed arbitrary power and, at times, used their power for what many deemed “the good of the people”. The problem was, should even these “good” ones fall into a bad mood or make enemies with someone, there was nothing to prevent them from exacting their arbitrary will against whoever it was they were displeased with. Read my article on arbitrary power if you’re not sure what arbitrary means.
The Executive Order: American Example
Take a look at American history. The executive order does not originate from the Constitution, meaning that the power associated with the executive order is arbitrary. There’s no limitation to it because there’s no way to define exactly what the power is. Since it’s not defined by any objective standard–the Constitution–it’s also not confined by any objective standard. However, I can think of many cases where this arbitrary power was used for “good” (I know good is relative, but I think most Americans would agree on the positive nature of the following executive orders).
For example, Thomas Jefferson used an executive order for the Louisiana Purchase. He had no enumerated Constitutional power justifying this action, but he did it anyway, arbitrarily, and for the good of the country. Years later, Abraham Lincoln used the executive order (“proclamation”) to free the slaves. Again, he technically didn’t have the Constitutional power to do this, but who would argue either of these uses of arbitrary power were “bad”? (Granted, because of the arbitrary nature, we’re operating in the subjective realm. At the time, I’m sure many Americans saw Lincoln’s proclamation as “bad”).
Here’s the problem. Both of these presidents used arbitrary power to do these great things for the country, opening the door for other presidents to also use the executive order for whatever arbitrary reason they chose. Because the first presidents did it and got away with it, others could do it as well.
On February 19, 1942, Franklin D. Roosevelt signed executive order 9066, empowering the Secretary of War and his armed forces to forcibly detain and move Japanese Americans into “relocation centers”.
“On March 29, 1942, under the authority of the executive order, DeWitt issued Public Proclamation No. 4, which began the forced evacuation and detention of West Coast residents of Japanese-American ancestry on a 48-hour notice. Only a few days prior to the proclamation, on March 21, Congress had passed Public Law 503, which made violation of Executive Order 9066 a misdemeanor punishable by up to one year in prison and a $5,000 fine.
Because of the perception of ‘public danger,’ all Japanese within varied distances from the Pacific coast were targeted. Unless they were able to dispose of or make arrangements for care of their property within a few days, their homes, farms, businesses, and most of their private belongings were lost forever.
From the end of March to August, approximately 112,000 persons were sent to ‘assembly centers’ – often racetracks or fairgrounds – where they waited and were tagged to indicate the location of a long-term “relocation center” that would be their home for the rest of the war. Nearly 70,000 of the evacuees were American citizens. There were no charges of disloyalty against any of these citizens, nor was there any vehicle by which they could appeal their loss of property and personal liberty.”
Yes, this actually happened in America, to our shame.
The point I want to make is this: why was the president able to do this, when he did not technically possess the Constitutional power to do so?
The answer? Because Jefferson and Lincoln were able to do what they did before him.
This is arbitrary power.
This is the consequence of arbitrary power (Again, consider that Americans at the time of the Japanese interment may have perceived this executive order as “good”. Arbitrary means subjective. It’s based on our subjective whim at the time since it is not tied to any outside standards. It could have been or be any race, religion or the like.)
There is no objective standard by which to condemn Roosevelt’s executive order because the power to issue the order comes from nowhere, just like it came from nowhere for Jefferson and Lincoln.
And to make matters worse, the Court upheld the order in the Supreme Court case Korematsu v. U.S. Get this. The Court has not overturned their decision to this day. “On December 18, 1944, a divided Supreme Court ruled, in a 6-3 decision, that the detention was a ‘military necessity‘ not based on race.”
This article should inform your understanding of government behavior during this pandemic, or at least give a bit more historical precedent and context to it.
I give these examples to point out a very simple yet incredibly frightening reality. The Supreme Court possesses an immense amount of arbitrary power. The power of judicial review (i.e. the ability to interpret the Constitution and declare government action unconstitutional or constitutional) is nowhere to be found in the Constitution; therefore, there is no object standard by which to define or confine this power.
Consequently, the power of the Court continues to balloon because there is nothing, at this point, to confine their undefined power. Judicial review, at its inception, was only supposed to mean that the Court could declare laws by the federal government unconstitutional, requiring Congress to go back to the drawing board. But since the power of judicial review is an arbitrary power, undefined by anything, there’s nothing stopping it from being redefined and changed over time.
Now, the Court determines the constitutionality of every level of government action (Congress, executive, state, local, city) and then rewrites or reinterprets the government action as they see fit. This is called “legislating from the bench” and is a major issue since we the people do not elect these Justices (not to mention that the Court was never supposed to apply the federal Constitution to states to begin with).
Here’s the real issue. The Court has used this arbitrary power for “good” by occasionally striking down some very oppressive government action (e.g. The Schechter Poultry Corp. v. United States ruling in 1935 struck down the very oppressive NIRA law that forced private businesses to set their prices at a certain level, along with many other heavily intrusive and oppressive measures).
But, since this power to strike down unconstitutional behavior is arbitrary, just like the executive order example, the Supreme Court has also been very fond of declaring government action constitutional.
The ability to legitimize government behavior by declaring it “constitutional” is gravely dangerous because it results in the Court handing immense amounts of power to these other branches. For instance, look at the Korematsu vs. U.S. (1944) and United States vs. Curtiss-Wright Export Corporation (1936) cases. Both cases egregiously expanded executive power. Or look at McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), both cases that greatly expanded Congressional power. And think about it, Congress and the executive have no incentive to push against the ever growing judicial power, because the growth of the judicial branch results in the growth of Congress and the executive.
Supreme Court cases have also been very fond of striking down state or local laws that could be construed as violating the federal constitution (e.g. Roe v. Wade, 1973 or Obergefell v. Hodges, 2015). This use of judicial review has slowly but steadily eroded state and local power and autonomy while fortifying federal power and autonomy.
This is arbitrary power.
It’s arbitrary because it cannot be defined and therefore cannot be confined.
We need to know the kind of power we’re facing if we’re going to have any chance of preserving liberty in the face of it.
“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.” – John Quincy Adams
The Liberty Belle