Introduction: Extraordinary Legal Powers
The President of the United States of America, under certain circumstances, may lawfully overrule the organic law of the United States, the rest of the Constitution of the United States in its entirety, and all other domestic law of the United States despite the unanimous, clear, emphatically communicated, and repeated contrary opinion of all other U.S. nationals and all other U.S. institutions, including courts, Congress, and States, even with the opinion explicitly warning of all of the penalties for failure to adhere to the opinion as law.
If the President does so, the President may be involuntarily subjected to all of the burdens of U.S. domestic law, which may include denial of counsel, impeachment, deprivation of liberty and property, incarceration, termination of all familial relationships, termination of nationality, psychiatric surgery, torture, capital punishment, and erasure from many important historical records.
If any such burden reasonably appears to a foreigner to be a pending possibility, a foreign nation, under certain circumstances, has the lawful authority to intervene to protect the President from all such burdens, including by invasion, asylum, and the disempowerment and punishment of all persons who would seek to impose any such burden.
Whether that ends the series of events may depend on whether an agreement to end it is agreed to by the parties. Absent such an agreement, the nation invaded or which lost anyone to foreign asylum may seek to reverse and punish for that result, with the series continuing in both directions until concluded by such an agreement.
It may be politically unwise to exert the norms to overrule any other law and one U.S. President, Richard Nixon, may have lost his job in trying to (if he was). It may be outrageous that such is the law. It may be unfortunate that the law does not provide an exemption for what is politically good, intelligent, wise, or appropriate. But it is law.
Accidents happen. They happen in dishwashing by a child and they might cause wars. As far as the norms are concerned, with one exception (discussed elsewhere), an accident giving ground for war against a nation is no less the responsibility of the nation and its head of state than is anything deliberate by them. No one wants a mere accident to cause them to lose everything they have. This makes nations and their heads of state quite careful.
The law is no less a seamless web for that. In U.S. domestic law, a view is that for any set of facts and any question of law one and only one legal answer exists, subject to the resolution of any ambiguity. This applies as well to the whole law including the norms.
Virtually all of the above is true for any nation and its head of state.
Even as some attorneys argue for the absolutism of one or another Constitutional right, not even the Constitution as a whole has absolutism. Most discourse on U.S. law is missing discussion of any law superior to the Constitution. Even lawyers omit it from discourse, perhaps because other lawyers don’t discuss it either, and most lawyers and parties don’t encounter it as separate in practice, creating common ground in ignoring or forgetting it. Whether the omission is more common in nations where adverse application of the norms by foreign nations would be more apparent to those nations’ general publics is moot, but the U.S., with a large and economically assured population and a sophisticated domestic law system, would find it easier to ignore the topic. Law superior to the Constitution is up there, it’s binding, and much of it is not because we signed anything. Even forming a new nation offers no escape from law superior to a nation’s own law. But, except for religion, we hardly talk about it as law. Maybe because we Americans tend to see ourselves as exceptional in the world and because we’re more powerful than perhaps any nation and offended by a notion of foreign governments telling us what to do, we don’t think of it. Attorneys, almost without exception, don’t publicly mention it and may have forgotten it since law school. (I had assumed, without checking, that almost every lawyer alive today has had at least a one-semester class or its equivalent in international law, including on the norms, and some education, even if sketchy, in natural law, both physical and metaphysical, but a look at what some recent bar examinations require for passage, according to several law schools, suggests that these topics are not usually part of the exams and thus studying the topics may not be required in most schools except for potential specialists and as included in other courses, such as on commercial law, which likely teach about key international commercial treaties, or on jurisdiction. Presumably, inclusion was a topic of debate and I do not propose to reopen that debate here, but exclusion has implications that are interesting to ponder. One of them is that questions that are on the test being answered without accommodation for the norms or natural law could lead to answers that are wrong in law but are considered correct for passing the exam, thus setting an expectation applicable to a new attorney’s long career, perhaps including being a judge or a treatise author.)
I question whether the absence from public discourse is smart. The norms have an immense impact on nations and individuals. The norms should be more a part of popular discourse, including in the U.S., by attorneys and politicians as well as in books by academics for laity, so the polity understands better with what we’re dealing. The only rationale for the absence, if deliberate, is the preservation, even enhancement, of the robustness of domestic law even if overrobustness is thereby present or obtained.
The organic law of a nation is the ‘law establishing that the nation exists’, either explicitly or implicitly and because the law creates or continues the nation’s existence. Arguably, the organic law has to be in the domestic law of the nation, so that it is in the legal and political control of the nation; otherwise, the nation risks being extinguished without its consent, a breach of its sovereignty, or a lawful justification for such a breach by the norms. Here, the term is defined to refer to the particular legal provision so establishing and not necessarily a larger law of which the organic legal provision is part. A law not in effect is not the organic law; that could apply to a treaty ending a war and recognizing nationhood or to a declaration of independence if either one, even if still historically important, has expired as law.
To allow slightly shorter writing in this essay, I’ll refer to a person within a nation’s responsibility as including ‘a national of the nation regardless of whether present in or out of the nation’, ‘a former national of the nation who has not since been a national of another nation and regardless of whether present in or out of the nation’, and ‘any person who is not a national of the nation but is present within the nation’. A tourist who is a national of one nation and is touring in another nation is within the responsibility of both nations.
Person is only vaguely defined. In this essay, it is inclusive; it includes an ‘individual human being’ and it may also include a ‘formal or informal organization with or without a right of its own, whether of a government or not, and regardless of which individual or individuals organize or constitute it’. For example, the Mafia in the U.S. (the Mafia that is also known as La Cosa Nostra1 and which reportedly has often denied its own existence in judicial proceedings), even if lacking a right to sue anyone, is considered a person for purposes of this essay.
Disclaimer and Invitation to Correct
I am not a lawyer.
I am not, in the sense contemplated for the norms, a speaker of law.
I likely have erred somewhere, especially on a narrower point, and welcome informative critique and correction. For example, one possibly-arbitrary decision in the past could have been the foundation for many subsequent decisions effective today. Also, much of my argument is developed through logic, but nations need not have developed the same body of law the same way, such as if history or prehistory appeared to them to commend another course of action.
I live in the U.S. and am a national, including being a citizen, thereof. I’m writing largely from a U.S. perspective, so matters specific to the U.S. and labeled as such appear throughout this essay, but this essay is meant to be descriptive of the world and, while it is not assumed that all that is true of the U.S. is true of the world, many histories and hypotheses specific to the U.S. are themselves relevant to most or all of the world.
I thought of and wrote most of this essay while the U.S. President was Barack Obama, a Democrat, and considered it equally applicable to the previous President, George W. Bush, a Republican, representing both of the political parties leading in U.S. politics and representing within national political leadership both liberalism and conservatism of their respective times. But, at about the time Donald J. Trump began his Presidency in , which I thought he would not win, I came to consider him a personal threat to U.S. national security because of news reports of an unconfirmed but significant claim of the nature of some of his assistance to the Russian government, having the appearance of spying on Russian oligarchs and their families and assets in the U.S., which spying I think was, by a significant chance, possibly unlawful, in conditions that suggested to me that he had already been personally blackmailed by the Russian government using apparent evidence of his personal conduct, all of this in the context of his demonstrating bad judgment in several areas and a problem of credibility, given his recent relationship with journalism and many journalists. Since then, according to news reporting, one or more people within U.S. national security agencies expressed concern about being required to reveal secrets to the President that might then find their way to Russia which might then damage U.S. national security, while Russia still has nuclear war-headed missiles aimed at the U.S. (the U.S. also has nuclear war-headed missiles aimed at Russia). This raised the question, for me, of whether publishing this essay early during the Trump Presidency would do more policy harm than good by indirectly empowering Trump beyond his evident willingness to apply good judgment. However, I think every modern President, at least, has had an attorney who was familiar with the norms of international law and I think that Trump is no different. I think that every major U.S. national security agency has had and now has qualified counsel who can describe the norms. All of that, combined, still falls short of guaranteeing that Trump will be wise, but the odds of this essay making the Trump Presidency worse are tiny and the benefit of educating the public much greater.
I am an atheist. This is relevant to the discussion herein of metaphysical natural law.
This essay is largely without citations to sources, especially on law. I assume the most authoritative sources, especially on the norms, are published in many natural languages and I am fluent only in English, so I likely cannot read most of those sources. Suggestions on authoritative sources, especially any in English refuting any of my views, are welcome.
I do not necessarily agree with all of the law described herein. I am stating it and not advocating particular content, so I hope I am stating it neutrally.
If I had spent more time on this essay, it probably would have been to improve its organization and to add more content on specific norms. Nonetheless, this essay can spark some discussions about, for example, the greater breadth of Presidential power than is usually recognized.