Senator Rand Paul (R-KY) introduced an interesting Constitutional amendment this week:
‘Section 1. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to Congress.
‘Section 2. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to the executive branch of Government, including the President, Vice President, ambassadors, other public ministers and consuls, and all other officers of the United States, including those provided for under this Constitution and by law, and inferior officers to the President established by law.
‘Section 3. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to judges of the Supreme Court of the United States, including the Chief Justice, and judges of such inferior courts as Congress may from time to time ordain and establish.
I view this as a superficial attempt to simultaneously throw red meat to Paul’s libertarian and populist Tea Party followers. First of all, the proposed amendment is unlikely to be successful, given the notorious difficulty of passing Constitutional amendments, which require two-thirds of both houses of Congress and then ratification by at least three-fourths of the states (or, 38 out of 50).
And secondly, while it may sound nice to say that not even the government will be above the law, that is the system we’re already supposed to have, yet it is largely a farce. Even if this actually became an amendment, it would be mostly symbolic.
The government is constantly breaking the law and taking actions that are clearly illegal for ordinary citizens to take.
To take just one example, the Supreme Court in 2010 decided that “material support” laws Congress passed to criminalize aiding terrorist groups includes “Advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.” Yet this didn’t seem to apply to scores of current and former U.S. politicians that advocated for and got paid to speak on behalf of the Iranian dissident group Mujahedin-e Khalq (MEK), which was on the State Department’s list of terrorist organizations until September 2012.
Here’s what former Governor Ed Rendell told journalist Daniel Denvir when confronted about his illegal support for MEK:
“If you indict me, I hope you know, you have to indict 67 other Americans who did the same thing, including seven generals … [who] served in Iraq. You’d have to indict James Jones, President Obama’s first NSC chief adviser, you’d have to indict former Attorney General [Michael] Mukasey, former FBI Director Louis Freeh … the whole kit and caboodle.” That caboodle is voluminous and high-powered, including Tom Ridge, UN Ambassador John Bolton, Rudolph Giuliani and Howard Dean, among others.
Or, take an example straight from the Executive Branch. In September, President Obama unilaterally waived the ban on supplying lethal aid to terrorist groups “to clear the way for the U.S. to provide military assistance to ‘vetted’ opposition groups fighting Syrian dictator Bashar Assad,” the Washington Examiner reported. If Presidents can simply waive laws they know they’ll soon be in violation of, an amendment like Paul’s is worthless.
Or what about the NSA’s lawlessness under the Executive Branch? Senator Ron Wyden (D-OR), who is on the Senate Intelligence Committee and has access to classified information about the NSA’s surveillance practices, said this month that even with the overly broad statutory powers granted to the NSA, “the rules have been broken, and the rules have been broken a lot.”
A recently declassified FISC ruling found that the NSA “frequently and systematically violated” statutory laws governing how intelligence agents can search databases of Americans’ telephone communications and that NSA analysts deliberately misled judges about their surveillance activities in order to get court approval.
Going back a little further, President Bush flagrantly violated the law when he secretly authorized the NSA to perform warrantless surveillance on phone calls, including American communications.
I could go on and on (torture, indefinite detention, war crimes, etc. etc.)
If Paul wants laws to be applied equally, why haven’t I heard him call for indictments against the Obama and Bush administrations, not to mention the leadership of the NSA?
Probably because this is for political show. The truth is, being in the Executive Branch or in Congress is basically a get out of jail free card. If Joe Schmoe steals $50 out of the cash register of his local convenient store, he’ll be in big trouble. If the U.S. government supports terrorism, wages illegal war, and systematically violates the Fourth Amendment in complete secrecy…no problem.