A few weeks ago, I discussed the National Defense Authorization Act, or NDA. Under the NDA, law enforcement or the military could detain American citizens for an indefinite time frame without being read Miranda rights and even without probable cause. Again, I find this bill completely alarming, unconstitutional, and against everything I believe my United States of America stands for.
However, all is not lost, dear readers. Because the President, while he signed the NDA into law, reveals in a signed statement that, even though he doesnt believe in certain portions of the legislation, he ratified the legislation because of the funding provisions.
For a minute there, I was worried that all provisions of a signed piece of legislation would become law. But if the President says hes not going to enforce some of the provisions, I guess we can all relax, break open a bottle of champagne and celebrate dodging that bullet.
But whoa, not so fast. I just happened to be cleaning out my files from when I took two (not one, but two) semesters of Constitutional Law. In my meticulous course outline (of which I didnt buy), theres no mention of a Presidential note and the constitutional power such a note wields.
In fact, according to my studies, the concept of a presidential note doesnt exist at all. So what does that mean? What affect does the President making a little notation at the bottom of a bill he signs that states that he likes some of the bill, but not all of the bill, and the stuff that he likes passes, and the stuff that he doesnt like, well, he still doesnt like it but I wont enforce it?
None. At. All.
The little note the President affixed to the bottom of the bill means bumpkis. Its basically a little post-it that tells his supporters and opponents of the NDA that he really isnt down with the whole shebang.
That he wont enforce the parts he, and by extension, his supporters, doesnt like. That no one will be thrown in jail, prison, Gitmo or anywhere else prisoners are kept without the full force and process of law Fourth Amendment to the Constitution law present and applied to the situation.
I wish we could take some comfort in this, but we cannot. Historically, Presidential notes on legislation such as the NDA are worthless. Its almost akin to someone writing If I dont pay this, the bank wont foreclose on the property.
That statement, similar to the Presidents writing, has no force and effect at law. You dont pay, you dont stay thats the way it works in real estate, and just because the President says hes not gonna enforce something doesnt mean its not going to be enforced.
Which leads me to a bigger issue in this entire mess where are our representatives? You know, those people we elect to Congress to look out for us? To ensure that our rights arent trampled upon?
Apparently, they were all asleep at the wheel the NDA passed through with nary a negative vote. I understand the NDA, on some level, needed to be passed to continue to fund the war on terror. However, the United States Government should not have included the provisions that would allow the government and law enforcement agencies to pull people off the streets without probable cause and with a complete circumvention of our Constitutional rights under the Fourth Amendment.
I know I seem to be going off on this particular topic for a few columns now, and I understand further that I mention, time and time again, that the NDA violates our Fourth Amendment rights. But this issue and these concepts cannot be said or written enough times. We cannot sleep, relax or pursue our individual ideas of happiness without the constitutional protections afforded us. This should not stand.
Thus, in these perilous times, we have to be ever more vigilant to ensure that our liberties and freedoms are not taken away by Congress or any other governmental entity. Now, it appears, it is up to us to make sure were free its quite obvious that a presidential note isnt going to get it done this time.
Christopher Markham writes a regular column for fredericknewspost.com.