Tuesday, February 06, 2007

Rule By Decree

I quote him again:

Does this man look 'unpopular'?"As anyone who studies the behavior of the U.S. empire during the last century discovers a common factor; every time the US are going to attack someone, they don’t do it right away, they start by preparing the terrain of their internal public opinion, one of the things that worries them the most....That way, when they launch the attack, they obtain the support of a big part of their internal public opinion. Almost all media in the country support them... they look for allies in Europe, from the U.N., they start preparing the terrain..."

Hugo Chavez, President of Venezuela
February 20, 2005

I was scanning news stories on the internet a couple of days ago when I ran across the following headline:

The report describes how the Venezuelan congress has ostensibly given it's President, Huge Chavez Frias, dictatorial powers to "rule by decree". Well, that certainly does sound like an alarming development when it's put that way. As if to ensure your alarm, the reporter begins as follows:

Convening in a downtown plaza in a session that resembled a political rally, lawmakers unanimously gave Chavez sweeping powers to legislate by decree and impose his radical vision of a more egalitarian socialist state.

"Long live the sovereign people! Long live President Hugo Chavez! Long live socialism!" said National Assembly President Cilia Flores as she proclaimed the "enabling law" approved by a show of hands. "Fatherland, socialism or death! We will prevail!"

The law gives Chavez, who is beginning a fresh six-year term, more power than he has ever had in eight years as president, and he plans to use it during the next 18 months to transform broad areas of public life, from the economy and the oil industry in particular, to "social matters" and the very structure of the state.

His critics call it a radical lurch toward authoritarianism by a leader with unchecked power — similar to how Fidel Castro monopolized leadership years ago in Cuba.

"If you have all the power, why do you need more power?" said Luis Gonzalez, a high school teacher who paused to watch in the plaza, calling it a "media show" intended to give legitimacy to a repugnant move. "We're headed toward a dictatorship, disguised as a democracy."

Oh, things certainly seem dire down there for each and every American trapped inside a Venezuelans body, screaming to get out, doesn't it? "It's the end of democracy", we're led to believe.

Of course, buried near the bottom of the story is this surprisingly reasonable statement from one State Department official in nearby Columbia:

"It's something valid under the constitution," said Shannon, the assistant secretary of state for Western Hemisphere affairs, told reporters in Colombia. "As with any tool of democracy, it depends how it is used," he added. "At the end of the day, it's not a question for the United States or for other countries, but for Venezuela."

What happened here? Did someone forget to fax the day's theme to this guy? What does he mean it's "valid under the constitution?" How are we supposed to paint Chavez as an anti-constitutional tyrant if we've got this guy down there citing facts about the Venezuelan constitution? Isn't he "emboldening the enemy"?

Let's delve further into this because I think we may be on to something. Eric Wingerter has penned what seems to be the definitive breakdown of what's behind this "enabling law" in Venezuela and the shrieking "rule by decree" headlines we're seeing in the US news media.

Mr. Wingerter, what say ye?

Did you hear that President Chavez is going to Rule by Decree for the next 18 months? The very idea evokes a picture of a not-too-distant South American past, one in which all-powerful executives live out their capricious whims and mete out brutal retribution against political enemies. It's all so dramatic and perverse and larger than life. Somewhere Andrew Lloyd Webber is already mapping out the musical score.

But in this case, it's just not true. Of course, if you've been reading the newspapers lately, you'd have a hard time figuring that out. The Miami Herald headline blares: "Chavez Granted Power to Rule by Decree." Time Magazine asks "Is Chavez Becoming Castro?" And those are the restrained ones. The right-wing rags have headlines like "A Dictatorship Rises," and "Hugo Chavez Kills Democracy." So you'd be forgiven for not getting the nuances in this storyline.

Here's what's actually happening: The Venezuelan assembly is poised to pass a law that will give the executive branch greater leeway to establish norms on a certain range of issues. Most of these involve guidelines for the president's own cabinet-level agencies. In other words, the Venezuelan version of the IRS will map out the country's tax structure; the Transportation department will devise its own strategic plan for public transit nationwide, etc. This represents a shift of certain powers from the legislative branch to the executive, to be sure, but on paper they don't seem to stray too far from the powers that the executive branch in the United States already has. Venezuelanaysis.com has a full listing of the ten issue areas that are affected.

It is important to note that this type of power-transfer is allowed under the Venezuelan constitution of 1999, which expressly permits the President to issue executive orders specifically within these issue areas. Of course, the constitution continues to guide the country's overall legal framework, which is to say that no "decree" can supercede constitutional law.

What's more, this "enabling law" is not new to the current constitution. Venezuela's previous constitution allowed for similar powers shifts to the executive, and you can be sure that past presidents took advantage of this authority on multiple occasions throughout the 70's, 80's and 90's.

OK, so it's not anything new and, contrary to rumor, Chavez hasn't been granted the power to "rule by decree" at all. Yet here we are being subjected to these screaming headlines described above in virtually every corner of the US media if not the world.

I find that particularly interesting because the nature of these new powers -- i.e. executive branch agencies being granted the right to write the rules governing their particular area of responsibility independent of legislative approval -- sounds eerily familiar.

Bush Directive Increases Sway on Regulation
[Registration req'd; Alternative link]
Published: January 30, 2007 [New York Times]

WASHINGTON, Jan. 29 — President Bush has signed a directive that gives the White House much greater control over the rules and policy statements that the government develops to protect public health, safety, the environment, civil rights and privacy.

In an executive order published last week in the Federal Register, Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president’s priorities.

This strengthens the hand of the White House in shaping rules that have, in the past, often been generated by civil servants and scientific experts. It suggests that the administration still has ways to exert its power after the takeover of Congress by the Democrats.


Consumer, labor and environmental groups denounced the executive order, saying it gave too much control to the White House and would hinder agencies’ efforts to protect the public.

Typically, agencies issue regulations under authority granted to them in laws enacted by Congress. In many cases, the statute does not say precisely what agencies should do, giving them considerable latitude in interpreting the law and developing regulations.

The directive issued by Mr. Bush says that, in deciding whether to issue regulations, federal agencies must identify “the specific market failure” or problem that justifies government intervention.

Besides placing political appointees in charge of rule making, Mr. Bush said agencies must give the White House an opportunity to review “any significant guidance documents” before they are issued.


Peter L. Strauss, a professor at Columbia Law School, said the executive order “achieves a major increase in White House control over domestic government.”

“Having lost control of Congress,” Mr. Strauss said, “the president is doing what he can to increase his control of the executive branch.”

So, in what way does this differ from what is being done in Venezuela, one might ask. Allow me to suggest some important distinctions:

1) In Venezuela the measure is temporary, with the powers set to expire after 18 months. Not so in the US where the change is permanent.

2) In Venezuela the measure was adopted after a vote of the duly-elected representatives in that nation's legislature. In the US it happened by Executive Order, quietly and without the consultation of any other branch of government -- a decree, if you will.

3) In Venezuela the measure applies to a President who does not subscribe to a Unitary Executive Theory, unlike the President of the United States.

One can only wonder why a temporary legislative measure in the distant land of Venezuela sets off more alarm bells and feigned concern for the state of democracy than does the odious Unitary Executive Theory, the avowed philosophy of its own President, in the American news media.

Is that sulfur I smell?


Bush Seizes Power While Media Fixates on Chavez
Eric Wingeter on Chavez' "Rule by Decree"