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THE LAW IS A ASS for 06/26/2001
DOCKET ENTRY
"The Law is a Ass" Installment #101
Originally written as installment # 90 and published in Comics Buyer's Guide issue # 676, October 31, 1986 issue
For those who keep track of these sort of things, last week was Part One of a two-week column on DC's 1986 company-wide cross-over series Legends. That would make this week, Part Two.
And the sad part is: figuring out which part this one would be would probably be at least a $64,000 question on Who Wants to be a Millionaire?
******
"The Law is a Ass"
Installment #101
by
Bob Ingersoll
Well, last time, you remember, our hero, Rocky, the Flying Squirrel, was plummeting to his death, after...
Sorry about that. Wrong recap.
Last time I was explaining why the Executive Order issued by President Reagan in Legends # 2, which forbids all super-hero heroics until the crisis created by G. Gordon Godfrey's anti-hero rhetoric ended, was invalid. I had explained that Godfrey had used his power of making anyone who heard his voice obey him to turn America against the super-heroes and that the President issued this order to stop the panic and violence that ensued every time a super-hero used his or her powers. I was explaining that under the Constitution the President does not have the authority to issue such an Executive Order. I was also explaining, that as the Executive Order exceeded the President's authority, it was as useless as a balsa wood recliner. I didn't get around to explaining why the Order exceed the President's authority. I will do that, but first, a quick refresher course in U.S. History.
Of course, it's important. Just because I'm paid by the word, doesn't mean I'll pad my columns any more that is absolutely necessary to meet this month's Visa bill.
Why did we fight the American Revolution? To free ourselves of the tyranny of one man sovereign rule. How did our forefathers assure that the new American government could never become equally tyrannical? By specifically enumerating what powers the federal government--Congress and the President--had and reserving all other powers in the states.
The intent of the Constitution was to spread governmental power between the states and the federal government, so that neither became all powerful. All powerful was reserved for Isaac Asimov. When the federal government does something which exceeds the powers specifically granted it in the Constitution, that something is unconstitutional, without effect, and void.
One of the powers which was reserved in the states and which the federal government does not possess is Police Power. Police Power is the power to legislate and act for the public health, safety, and welfare. Banning super heroics in order to stop riots is an act designed to promote public safety. It falls within Police Power and falls outside of the federal powers.
So the President could not justify his Executive Order on the grounds that it was for public safety. He would have to find justification for his Order among those powers specifically granted him in the Constitution.
That, anyway, is what one would be taught in a Con Law class, where they still adhere to the concept that the federal government lacks general police powers. It is true that the police powers that can override those of the State. But it does have some form of police power. Quick example: Interstate highways. While the feds can't set speed limits in on Main Street, USA, they can, and do, set speed limits on interstates, because those are owned and operated by the federal government. They also have some police power to regulate conduct in, say, national parks. The trick would be to figure out if there was some way of using a federal authority to find enough of a federal police power to allow the executive order.
By "federal authority" I meant one of the powers granted to the President or the federal government under the Constitution. What are those, you ask? At least, I hope you do. I can see the people sleeping in the back row, but I trust I'm not boring everyone.
Under the Constitution, the President has the following powers: 1) the power as chief executive to make sure that all federal laws are faithfully executed; 2) Commander-in-chief of the armed forces; 3) the power to make treaties and set foreign policy; 4) the power to appoint federal judges and ambassadors; 5) the power to veto legislation; 6) the power to outlaw all movie sequels (Of course the President doesn't have such a power, although I wish he did, I just wanted to see if you were paying attention.); 6) the power to pardon those convicted of a federal crime; and 7) the power to recommend certain legislations to Congress. Do you see anything about the power to forbid super heroics in there?
That's because it isn't there. Controlling super heroics isn't in the President's job description. At least, not as such. And if
Back during the Korean War there was a nationwide steel workers strike. This crippled the war effort, because steel was a vital component of most weapons. They tried making weapons out of used chewing gum, but it just didn't work as well. (That stuff is actually harder than steel, so was difficult to roll into barrels.) If no one was making steel, then other people couldn't make weapons. And what fun's a war without weapons?
President Truman decided that the situation was a national crisis, which threatened the entire well-being of the country. Remember that conclusion? It was the same conclusion that President Reagan reached about the violent reactions against super-heroes that prevailed in the country in Legends. President Truman, like Reagan, acted. He nationalized the steel mills, seized them from their owners, and had the Army roll steel.
The Supreme Court said that was a no-no. (Actually, what they really said was a bit more formal than that and took lots more pages, but you get the idea.) Seizing steel mills was beyond even the war powers of the President as commander-in-chief of the armed forces. The Supreme Court invalidated the Executive Order seizing them and returned them to their owners.
In much the same way, the President has not been granted the constitutional authority to ban super heroics. As the power is beyond him, his Executive Order was so much Monopoly money, and hardly the foundation on which one should base a mini-series.
But wait, have I erred? After all, President Reagan does have the authority to issue an Executive Order forbidding Americans to travel in Libya. That's because the federal government has the power to regulate foreign affairs. That includes the power to enact legislation authorizing passports and setting controls on how Americans may travel abroad. Congress, when it enacted the passport legislation presently on the books, granted the President the authority to issue such travel restricting Executive Orders, when national foreign policy demands it.
And that brings us to the No Prize. You know the prize Marvel awards for pointing out a major mistake then offering a solution to the mistake that proves it wasn't a mistake, after all. I like DC. I like the people at DC. I don't want to ruin Legends by pointing out that its most important plot development, the super hero banning Executive Order, could not happen. So I now propose to explain how the President Reagan on Earth DC might have had the authority to ban super heroics, even though the President Reagan on our Earth doesn't.
The trick, as I said, is to find an existing federal power and see if it can be used to justify the super-hero ban. Among the many powers granted to Congress by the Constitution is the power to regulate interstate commerce. Congress has used the Interstate Commerce Clause to justify a variety of legislation. For example, it decided that racial discrimination would affect population relocation, i.e.,. people calling up United Van Lines and moving, because minorities would be reluctant to move into areas where Jim Crow laws still existed. If whole races were reluctant to move into certain areas, that would affect interstate commerce, because certain products which appealed primarily to certain races would not be imported into those areas that the races shunned. For this reason, so as to guarantee the freest flow of commerce in all the states, Congress passed the Civil Rights Act of 1964 which outlawed racial discrimination.
In much the same way super heroics would affect population relocation. Persons might be either more willing or reluctant to move into cities which had a local super hero. (Personally, I vote for reluctant. Heck, look at what happened to your average street in your average issue of Fantastic Four. Sure the latest FF versus Galactus brew-ha-ha is good for the employment numbers, the job security for the Department of Transportation road repair crews in the Marvel Universe must rival that of Bob Barker. But what's it like for the rest of us? Let's face it, if we really had super heroes on this earth I'd move to Gilligan's Island. Sure I'd trip over Gilligan a lot and probably break my collarbone permanently, but it would still be safer than living in Manhattan while Reed Richards was there. But I digress, not to mention pad)
If people didn't want to move into cities where super-heroes lived, once again interstate commerce would be affected. It is not untoward to conclude that the legislators of Washington D.C. on Earth DC enacted some form of Super-Hero Control Bill, in case the super-hero/super-villain situation ever got out of hand. We do know that Congress on Earth Two, when there was an Earth Two, enacted a law making it illegal to unmask a super hero. Logically such legislation would be more far reaching. A sensible Congress would also, in such legislation, give the President authority to ban super heroics, if a national emergency demanded so extreme an act. Don't laugh. Comics ask us to believe in super-heroes and they're impossible. So why shouldn't they ask us to believe in something else impossible, like a sensible Congress?
See, I'm not such a bad guy. I shoot down Legends, then I reinstate it. The lawyer taketh away, and the lawyer giveth.
BOB INGERSOLL
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