The Paul Detainment and Metastasizing Executive Power: Another Progressive Triumph

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by William L. Anderson: Do
We Really ‘Owe It to Ourselves’?



One only had
to wonder how long it would take before there would be open confrontation
between a member of Congress and the TSA, and it finally happened
with the detainment (and that is what it was) of Rand Paul in Nashville
on Monday. That was bad enough, but when one takes into account
the larger picture of separation of powers, it is even worse.

Many years
ago, I asked then-Tennessee U.S. Senator Jim Sasser in a public
forum why Congress did not have to obey the laws it imposes on the
rest of us. Sasser, unfortunately, answered by saying that the Senate
was full of the greatest people he ever had known, which was not
a real answer, but neither was Sasser exactly a bright bulb of knowledge.
To him, the whole thing was a power play, and he had power, and
I didn't.

Except that
Sasser unknowingly had a very important principle on his side, the
separation of powers as listed in the U.S. Constitution. (I have
to thank Lew Rockwell for pointing out this issue to me, and I admit
it opened my eyes to a lot of things regarding the law and the growth
of executive power.)

The founders
of the United States had laid out three branches of the central
government, and also had constructed legal walls between the central
government and the states, all known as "separation of powers."
There were to be limits upon the powers of people in those entities,
and in the case of Congress and the executive branch, one of the
provisions was the prohibition upon detaining members of Congress
on their way to legislative sessions. As Mac
Slavo has written
, this provision existed to keep political
rivals, be they in legislative, state or the executive branches,
from using arrests as political tools to prevent legislators from

Given that
Abraham Lincoln and Woodrow Wilson, among others, eviscerated this
provision (and received the ever-loving praise from "historians"
and "scholars" for their actions), we are speaking now
of concepts, unfortunately. Furthermore, what I call the Real American
Revolution, the Continuing Age of Progressivism, pretty much has
destroyed the Constitution and replaced it with the worship of executive

And that is
where we are with the Rand Paul detainment. In its Pavlovian
defense of the TSA, the White House simply repeated everything

the agency claimed after the incident was reported, and I am sure
that the rest of the Mainstream Progressive Media will serve as
the "amen corner" for the Obama administration. No doubt,
we will hear that Rand Paul should have to "obey the law,"
and "be willing to give up privacy for security," and
the rest of the "security" blather that we have heard
for more than a decade.

However, we
need to step back and take a much more detailed look at what happened,
as this is a microcosm of how Progressivism has given the executive
branch near-unlimited power, and how the executive branch not only
is permitted to violate the Separation of Powers Doctrine, but also
how it can regularly abuse people who have no recourse. This incident
did not appear from a vacuum, but rather is the result of a deliberate
policy that was crafted more than a century ago by intellectuals
and politicians that hated the limits upon governmental (and especially
executive) power. As a result, we have an executive branch today
that answers to no one.

As I mentioned,
the Standard Progressive Response to the Paul incident is as follows:

  • Congress
    created the TSA in order to "keep us safe," and the
    TSA agents in this situation simply were "doing their job;"
  • The TSA
    is necessary because terrorists killed 3,000 people on September
    11, 2001, so we need to do whatever TSA agents tell us to do;
  • It is important
    that all of us "obey the law," and that includes members
    of Congress, and if Rand Paul is not willing to obey those laws
    that apply to the rest of us, then he can forfeit flying;
  • Patdowns
    are "no big deal," and this is one more strike against
    libertarians who believe that individuals rights trump our safety.

And so on and
on. Esquire,
which never fails to parrot the Progressive line on nearly everything,
had this to say:

I have no
problem with somebody with some clout standing tall against the
crotch-grabbing kabuki that passes for security screening in our
airports these days, but, Lord above, is this going to prompt
some high-sterical overreaction from Senator Aqua Buddha when
he finally gets back to Washington. Dad’s already up there high
in the family dudgeon waiting
for him. Of course, I suppose if it were the Tennessee
TSA doing the screening (you know, if the states decided
to grab your crotch), then the Pauls would have no problem with
submitting to being groped.

Liberty can
be so confusing.

Another "Progressive"
had this to say
about the incident:

Despite the
most fervent wishes of the libertarian conservative corner of
the internet, Paul was not seized by Barack Obama’s Black Panther
stormtroopers and tortured for information about the supposed
“gold standard”: he set off the body scanner (something in his
knee, apparently), which requires a pat down; he refused the pat
down, and was escorted out of the security area. He took another
flight later. Inconvenient? Sure. Silly? Absolutely? But Rand
Paul was not detained.

Salon, which
is a Progressive on-line publication, declared
it to be a joke

Though it’ll
be awesome when Ron Paul wins the nomination and begins the first
debate by turning to Obama and shouting “GIVE ME BACK MY SON”

No one, not
Ron Paul, not Rand Paul, nor any other libertarians I know have
declared that somehow Rand Paul was going to disappear or to be
hauled off to a government dungeon. However — and this point is
very important — the law would have allowed for that very thing
to happen had the TSA and the Obama administration elected to pursue
that course. The reason is that Paul's actions could have been
interpreted by the U.S. Department of Justice to amount to what
federal law declares to be "interfering with the duties of
a federal officer," which is a felony punishable up to 20 years
in prison.

That is correct.
By refusing an order from a TSA agent, Paul could have been charged
with a felony. Keep in mind that the TSA policies themselves are
NOT part of statutory law; they are created by the agency that was
created by Congressional statute, and those policies are given force
of law, and that alone is a breach of the separation of powers.

The Constitution
gives Congress and only Congress the power to make laws, but Progressives
for years agitated for the executive branch to be given lawmaking
power through the creation of rules and regulations. The real breakthrough
came during the Great Depression, when Congress acceded much of
its power to the Franklin Roosevelt administration, a process that
continues to the present time.

This is a violation
of what is called the "Non-Delegation Clause," but the
courts, along with most Progressive "watchdogs" representing
the mainstream media (and especially
the ultra-Progressive New York Times
), enthusiastically
have gone along with anything that gives the executive branch more
power. For that matter, TSA agents have almost unlimited power,
including power to engage in arbitrary
strip-searching of elderly women
and commit a host of other
abuses. Their power is absolute, at least when it comes to officially
"performing their duties," and people must obey or face
arrest and imprisonment.

is another word for such a situation: Dictatorship. That is right,
dictatorship. When individuals are given vast amounts of power and
when they and they alone are permitted to essentially create the
law on the spot, that is the very definition of dictatorship.

Americans have
been conditioned to think of dictators as goose-stepping men with
funny moustaches wearing military uniforms with lots of medals.
People in this country have so fully absorbed the Progressive paradigm
that they are perfectly comfortable with forms of dictatorship that
Americans only a generation ago would have openly rejected.

No, Rand Paul
was not in real danger yesterday. No TSA agent or police officer
was going to gun him down or even haul him away in handcuffs to
a nearby cell. However, these men had the legal power to
do just that and face no legal sanctions for doing so, and the lack
of response by most Americans to this situation perhaps is more
frightening than anything the TSA did on Monday when the government
machine that scanned Rand Paul beeped.

25, 2012

L. Anderson, Ph.D. [send him
], teaches economics at Frostburg State University in Maryland,
and is an adjunct scholar of the Ludwig
von Mises Institute
. He
also is a consultant with American Economic Services. Visit
his blog.

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