Why Re-lowering the Flag was a Mistake

This has nothing to do with the person John McCain; it is about the rule of law.

Senator John McCain died on Saturday, August 25.  The flag over the White House was flown at half mast on August 25 and 26.  On Monday, August 27, the flag returned to full mast.   

When the flag was seen at full staff Monday morning, the Media, the anti-Trump crowd, and others who feel strongly about McCain’s legacy and/or his service to our country went nuts.  Like little children throwing a temper fit because they didn’t get candy, they screamed and hollered on every social and mainstream media outlet possible.  

Late Monday the White House apparently caved to this uproar and the flag was again lowered to half staff.  The President then signed a proclamation ordering flags remain at half-mast until McCain’s burial. .

This may seem like a small concession well made in light of the constant attacks of seemingly more serious nature against which the White House must continuously stand firm.  Here is why it is no minor matter.

The United States Code which is the codified laws of the United States of America, has a section on the flag.  That is found in Title 4 of the Code.  Chapter one of that Title addresses the flag and section 7 of chapter 1 addresses how the flag is to be displayed.  Subsection (m) of section 7 explains the length of time that the flag should fly at half mast for various dignitaries.  That subsection states that “By order of the President, the flag shall be flown at half-staff upon the death of principal figures of the United States Government and [specified others].”   It then goes on to provide specific times for the half-mast for various individuals, in part stating:  

The flag shall be flown at half-staff 30 days from the death of the President or a former President; 10 days from the day of death of the Vice President, the Chief Justice or a retired Chief Justice of the United States, or the Speaker of the House of Representatives; from the day of death until interment of an Associate Justice of the Supreme Court, a Secretary of an executive or military department,  a former Vice President, or the Governor of a State, territory, or possession; and on the day of death and the following day for a Member of Congress.

John McCain qualifies as a Member of Congress for purposes of this section:  Subsection (3) of Section 7(m) reads:  “the term ‘Member of Congress’ means a Senator, a Representative, a Delegate, or the Resident Commissioner from Puerto Rico.”

Thus, under the law, Senator McCain’s flag was to be flown at half-mast on August 25 and 26; it was indeed flown at half mast on those days. The law did not require it to be flown at half mast on the 27^th, the day in question - the day on which it was flown at full staff.

Some senators are beloved, others are not.  Regardless, all are entitled to have the flag flown at half-mast for the time prescribed by the statute.  Just because a particular senator may be more popular or more beloved or have served longer than should not entitle that senator to more time.  Nor should temporary political agendas which use the deceased senator as their tool result in disparate treatment. 

And yes, a president can sign a special proclamation, as President Trump has now done, calling for the flag to remain at half-mast until burial.  But then the law becomes less certain.  Four sitting senators died during Obama’s presidency.  He signed such proclamations for three.  There is no record of why the fourth was treated differently, but he was.  The crucial point is that based on that decision, the deaths were not treated with the equal respect that the law provides.

Granting more time for the flag at half-mast to John McCain adds to such disparate treatment; the rule of law has been bent.  Was it to placate political enemies who are using McCain’s stands against some of the President’s policies as ammunition in their fight against the president?  Was it to honor McCain’s military service?  Was it because he was a prisoner of war?  We don’t know, and hence, rather than a certain law applicable to all we are left with what appears to be subjective judgment; judgement which paves the way for more subjectivity in the future.

Suddenly the law becomes unclear.  There is no standard.  If the rules are bent in this instance, why not the next?    And who will we leave to make the decision in each case – a president with whom we may or may not agree, or the loudest voices, or some other power group?  That is the beauty of our rule of law:  the decision has already been made by all of the people through their elected representatives and it treats all the same, regardless of the political whims of the day.

I find it especially interesting that many of those loud voices against the White House’s statutorily proper action came from those who are often heard asserting that everyone must have equal treatment under the law and that this President does not follow the law.    But, then, I suspect that the real purpose for many was just to use this phony “wrong” by the President as another way to attack him.  The President was following the law, a law that, by so clearly laying out specific times of half-mast for specific position, makes sure that any and all who have served in each particular position are treated equally.

While how long a flag flies at half-mast may seem to be a minor matter, failure to respect the law is setting a dangerous precedent.  That is why I think that the White House’s reversal late Monday was a mistake.   If it is OK to bend this rule or apply it differently in this case, why not the next?  And then the next?  And then why not other laws as well, until there is no predictability or certainty.  Change the laws following our process of doing so, but don’t demand that they be bent or differently applied because of this or that political and temporary agenda.

It doesn’t matter how one feels about Senator McCain.  We have a law, and, just as McCain fought to uphold our rule of law, we should all respect and honor our laws.  We should not alter their application to appease some sort of temper tantrum or because we think differently about one individual than another.  Once we begin to bend the rules at the whim of one or another powerful force we are on the way to finding ourselves with no rules at all.