Constitutional Authority

At first glance, right wing Minnesota congresswoman MIchele Bachmann and the editors of the British publication Financial Times seem to have little in common.  Ms. Bachmann is noted for her strident and combative opinions which she shares often with the viewers of right wing talk TV. She befriends only those facts which she judges won’t bite her.

 The editors of the Financial Times are more measured and sedate in their tone, as befits a British financial newspaper.  They admit and weigh facts which might counter their editorial position.  Both have shown support for Joe Barton, a Texas congressman who apologized to the CEO of the British oil company BP for the “shakedown” he received from the Obama administration.  To the casual reader, this might seem like one more tiff in a political cock fight but the disagreement is a deeper one, a fundamental difference in opinion about the authority vested in the Executive branch by the Constitution.

To illustrate the “anti-shakedown” perspective, I’ll quote from the more lucid Financial Times (FT) editorial.  The FT writes “While the US has pulled back from some of its more populist rhetoric, the decision to extract $20bn from BP was unwise.  Congressman Joe Barton may have been lambasted for describing the deal as a “shakedown” but he was close to the mark.  Much as one may sympathise with the plight of gulf fisherman, and wish them to be recompensed swiftly, it was unnecessary to bully BP into coughing up without the protection of the normal judicial process.  This smacks of confiscation.  It will stoke up similar populist demands in future crises and it make it hard for the US – the biggest owner of foreign assets in the world – to resist other nations’ extrajudicial imposts.”

The police functions of the executive branch are well established in the Constitution of this country.  A corporation like BP is an agent of capital, a legal shell for the accumulation and deployment of capital, and it is well within the legal authority granted by the Constitution to the President to escrow or arrest for a limited time a portion of that capital which the corporation represents.  Although BP has publicly admitted responsibility for the damages, it demonstrated an obstructionist attitude when it initially refused to release video of the blow out so that an independent assessment of potential damage could be made.  BP has demonstrated a similar obstructionism in paying what appear to be legitimate claims.  BP’s capital will have its day in court.  The $20bn of BP’s capital has not been expropriated by the US but is in escrow, a financial safekeeping familiar to anyone who has closed on a house.

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