April 19, 2018, San Francisco, CA
It has come to my attention that there is some controversy about a legal memo I wrote while serving in the Office of Legal Counsel under Former President Obama. Specifically, some have speculated that I could not have offered the legal advice I did, which led to certain acts by the Obama Administration that have become controversial, in good faith.
I write simply to set the record straight: despite the repudiation of aspects of these memos, I stand by the bulk of the legal advice I offered, and emphasize that it was all offered in good faith. I'll review them in terms of Constitutional provisions that critics claim were "violated."
Let's start with the First Amendment.
As you know, President Obama received some criticism for declaring Pastafarianism the national religion of the United States, which led to some messy forced conversions during the transition phase. While at OLC, I was asked to comment on the legality of this, specifically whether it violated the following provision:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
As I think should be obvious, this provision only prevents laws "respecting" an establishment of religion. The Pastafarianism Establishment Act ("PEA") was no such law. It has nothing to do with whether such an initiative was respectable, respected, or any other such question of social acceptability. The law simply implemented this act without regard to questions of respect. As for the last portion of this provision, I read it in good faith as eliminating the right of Congress to prohibit the free exercise of plans to establish religions. I should also note that Former President Obama's Executive Order was, on its face, not covered by a provision beginning "Congress shall make no law." I recognize that some have argued that other provisions make it clear that the President does not have this power either, but if this was an error it was made in good faith, and I cannot be held responsible in any way for the ensuing massacre of the heathens.
As for my opinion on the Permissible Interactions Act ("PIA"), in which Former President Obama made criticism of him, his family, his supporters, his policies, and the Chicago White Sox punishable by torture and summary execution, much of the muttering by those who have as yet eluded capture has been over this provision:
[Congress shall make no law] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I realize that this Act did lead to some episodes of mass imprisonment and slaughter that, in retrospect, were highly regrettable -- though I continue to believe that most of the blame there rightly lies with the rioters who refused to patiently await the verdict of the court system on the legality of this law. I stand by my contention that this provision had to be read in full context, as the Supreme Court says we must in undertaking constitutional analysis. Indeed, I believed in good faith that PIA did not run afoul of this provision, as it was not a law that abridged "freedom of speech or of the press or the right to peaceable assembly and petitioning the government for redress."
A law that abridges "A or B or C or D" is one that abridges all four; only such a law is proscribed. (Consider, if I say "you can't invade Iraq or Iran, you can't do either.) Yes, this law abridged three out of the four, but it explicitly and clearly did not abridge the right to "peaceable assembly." Rather, it abridged the right to all assembly, which is not the same thing. One must be very precise in one's Constitutional analysis, and "close enough" doesn't count). My good faith opinion was that it was therefore not covered by the First Amendment. Neither I nor the people who implemented the consequent government purges, colloquially known by some malcontents as the "Hannitrocities," should be held responsible; I said what I believed to be correct and others relied in good faith on my judgment. At worst: "my bad."
I still don't see why people object to my analysis of the Firearms Counterforce Act ("FCA"), which some have claimed goes against the Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Nothing in that statute said that people don't have the right to keep and bear arms. The question was whether the government is entitled to kill them on sight if they do so. Killing someone does not take away their rights; for example, their estates would be able to collect on their insurance policies as a matter of right. So I believe that the people who were killed due to their not giving up firearms made their free choice to die with their rights in hand, and if that's what they wanted to do, I salute them for it. I'm sure that the government agents who shot them, threw grenades into their homes, and in some cases bulldozed the homes with them inside -- having relied on my advice -- would join me in that sentiment.
Moving on, I think that people are actually quite happy with Former President Obama's Executive Order that places government military agents (aka "The Friendly Forces!") within our homes, but some still trot out the Third Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
I suppose that I once again have to explain my reasoning for why this amendment does not apply. First, obviously, we are not at a time of peace, so that's out. The originalists argue that we have to interpret Constitutional language the way that the Founders would have done, so that means that we have to define "in time of war" the way they would have. Well, did they have any conception of modern warfare? Could they have imagined anything remotely like the Firebombing of Colorado Springs that unfortunately became necessary in Former President Obama's first term? I very much doubt it! Their word "war" can't possibly capture the exigencies of the Nuclear Age. If the Third Amendment had contained a possibly appropriate term -- maybe something like "in times of SUPERWAR!", then perhaps I would have come to a different conclusion about this Order, but it didn't, so I think my advice was justified.
I'm going to skip over the Fourth Amendment (which, one must admit, was pretty much what Former President Obama's predecessor did as well) and skip down to the Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Now, admittedly, Former Justice Scalia blazed the trail for me here, not only arguing that torture by the government wasn't "punishment" -- which is pretty ironic given the circumstances of his demise on the Pay-Per-View HD cable program that Former President Obama established to fund national health care -- but also in ruling in Harmelin v. Michigan, 501 U.S. 957 (1991) that only punishment that was both cruel and unusual, rather than cruel but not unusual, was prohibited. Following Scalia's lead, I concluded that so long as Former President Obama implemented the same cruel punishment against his opponents at the same time, the punishment could not be considered "unusual" and therefore there was no Constitutional problem. Hence the suddenness of the roundups of all those political opponents who were soon to star in "America's Got Gladiators!" (As a side note: I don't think that the popularity of this move can be doubted. Even after several years, the Michelle Bachmann versus Sarah Palin match remains the highest rated program of the century -- as well as the most controversial among those of us who think that Palin was entirely right to in her opinion, expressed just before the end of the match, that providing her "a gun and ammunition" did imply the presence a firing pin -- and who is going to argue with the market?)
I have to admit that in some respects aspects of my memos regarding the legality of these items may have been mistaken. In particular, people have complained that I overlooked the Fifth Amendment's statement that "no person shall ... be deprived of life, liberty, or property, without due process of law." Look, what can I say? I thought that the Fifth Amendment was about the Takings Clause, and that this language was in the Fourteenth Amendment, where it applies to the states. So, perhaps there was an error here. Happily, it was quickly corrected by the remaining members of Congress with the Fix Any Mistakes Act ("FAMA") that retroactively authorized all possible misbehavior and reiterated that those who had undertaken the purges -- based on reliance in my theretofore perfect record -- should escape punishment.
I suppose that the last thing that I should address is the final decision I wrote -- before Former President Obama was entroned as King Bo I, Defender of the True Faith (All Praise His Noodly Appendage!) and I decamped for my current position as Viceroy of the Former Ninth Circuit -- which suspended elections indefinitely. I tire of explaining this, but one more time, for the record:
Article II, Section 1 of the Constitution states:
The Executive Power shall be vested in a President of the United States of America. He shall hold his term during the next four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:
... and what follows is a lot of blah-blah-blah.
Two things: first, the fact that the Executive Power is vested in the "President" does not mean that there isn't a higher power to tell the President what he has to do, which I hypothesized we could think of as "Superexecutive Power." The Constitution is silent on this "Superexecutive Power," which I speculated could inhere in a King. Now in the case of King Bo I, the offices of King and President coincide, with the former title being used ever since Coronation Day, but the King remains the President as well -- he presides, eh? -- so there is no problem. The key to those who wonder about the absence of elections is that we must view the Constitution as always being in force, something that I should have thought would be obvious. That means that, when I read the Constitution today, saying that the President shall "hold his term during the next four Years," that means that he will continue to be President four years from today! This provision doesn't just go away! When I read it again tomorrow, it will mean that he remains President four years from tomorrow. This is pretty simple.
To be safe, I did advise the President that so as not to confuse people we should eliminate all years divisible by 4, previously known as "general election years," which is why this year, 2018, is called "2017" in other parts of the world. (And many citizens are appreciative that we got rid of the year 2016, bringing them that much closer to being able to drive and vote and drink -- but not simultaneously, Justice Scalia! Ha-ha.) Some people really seem disturbed by this one, and all I can say is that the President relied in good faith on a legal analysis that I did in good faith, besides which I really wanted to become Viceroy of the Former Ninth Circuit and I think I'm doing a very good job of it!
So, I'm sure that people will be unanimous in agreement with this analysis, and if it's not unanimous right away it will be soon enough. As the newspaper said -- and thank the FSM that we don't have to make that a plural noun anymore -- Former President Obama is lucky that he had a legal advisor like me in place to tell him exactly what he needed -- deeply, deeply needed -- to hear. I'm just happy that I could do my part.
Update: You did worship at your state-sanctioned Pastafarian religious vendor this weekend, right?