The Power of the President, Curbed (Letters, New York Times, 7/2/06)Let's get this straight. The idea of "The Unitary Power of the President" is a figment of the imaginations of some neo-conservatives who created
Progress for a New American Century. Most notably Cheney, the kingmaker, with some support from Thomas and Scalia.
There is no such thing as unitary power in our three-branched Federal government. So I am using some letters from legal professionals to the
New York Times re: the Hamdan case, to establish the REAL job description of the president.
Furthermore, while I appreciated the
Times letting the legal professionals weigh in, there's an issue that continually irritates me. I can only assume that Constitutional Law professors (and with people like Bork teaching the classes, it does provide perspective) are teaching a fundamental concept incorrectly. I know that sounds arrogant coming from a non-lawyer, but you didn't know my legal scholar father or how he schooled his children on the Charters of Freedom. I have had Constitutional scholars read some of my white papers and tell me they pass muster, so I don't feel too much compunction about being a well-educated citizen who knows her Constitution inside-out and wants to share that knowledge with fellow citizens.
We should all understand our Constitution thoroughly, especially in these dark Constitutional days. Hence this blog.
So here's my pet peeve. Well, actually two. One mentioned in the letters above, one mentioned elsewhere ALL THE TIME.
No where in the Charters, not in the Constitution, not in the Federalist Papers, not in any Amendment, are the three branches of government called "co-equal." THEY ARE NOT.
This misunderstanding probably arises from the concept that each branch is bound by oath to the job description provided in the first three articles. But if you read the articles, you will see that the powers invested in each article are significantly different and Congress has the biggest job of all, detailed in Article 1. It is NOT equal to Articles 2 or 3.
First, Article 1 comes first because Congress represents the SOVEREIGNS. And that, happy citizens, is US. We are the bosses. In lieu of a King, this country is ruled by US, the citizens. (And Impeachment is described FIVE times in the first three articles because the framers were intent that there would be careful oversight of the process, but more importantly, NO KING. This is not partisan, either, because political parties are not included in the Constitution.) The very powers invested in Congress in Article I, which are lengthy (10 Sections worth), makes Congress the most powerful branch of government, as it should be, because it serves US, the Sovereigns. (Actually, at the time, the sovereigns were white male landowners, but that has, thankfully, been rectified.)
Article 2, by comparison, is teensy. It is a mere four sections. Section 1 describes the Electoral College and the qualifications for running for office, and Section 4 describes IMPEACHMENT. (Seeing a theme here?) That leaves two sections that cover the executive's job description. It's pretty short and sweet:
1) The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...Emphasis mine. It was considered more convenient if the executive could be CinC. However, as Congress has already been designated the ONLY branch that may declare war (the people who fight the wars should be the ones to declare them), the implication is that if Congress ("the United States") feels another individual is more suited to the task of CinC, Congress has the power to name another individual CinC. Three War Powers Statutes have reaffirmed these portions of the Constitution.
2) He may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices...In other words, he's the boss of the bureaucracy. He enforces and executes the laws established by the People. More on this in a moment.
3) He shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.This was a gimme. The framers felt the executive should have at least one task all his own, and someone had to be able to do it. Says so right in the Federalist Papers. In 18th Century language, of course.
4) He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.John Adams saw that this provision was included. He wisely recognized that the new nation needed a head of state who could sit at table with Kings and Queens. There was also the task of nominating Judges, to be a combined effort by the executive with the advice and consent of the Senate. (It IS also included in Article 1.) It seemed like a good compromise, while conferring a little extra power on this head of state for the benefit of appearances to other nations.
And note, advice and consent does NOT mean "rubberstamp." It was fully anticipated that this would be power-sharing. It is an example of the "oversight" that constitutes the checks and balances of our system. At least one branch oversees one of the others on issues of major importance to the Sovereigns. Again, that would be US, the citizens.
And, in light of all the hubbub since the newspapers ran the banking story, we can see that this oversight does not always work, and we do need the Fourth Estate. So many thanks to Mr. Madison who not only insisted on the First and Fourth Amendments (and, in fact, on the entire Bill of Rights), because he wanted the sovereigns to provide direct oversight if any of the other branches fell down on the job. In steps the Fourth Estate - a free press of the citizens - and the freedom of citizens to assemble peaceably. One can argue whether the Vietnam protests were peaceful, but they did contribute to ending the war. As did the Fourth Estate.
(As for Madison, like the other founders he was also pretty damn tired of the King's agents breaking into his home at all hours of day or night. So no search or seizure without a warrant stating probable cause. That does not include subpoenas, my friends.)
BTW, Thomas Jefferson even created procedures to allow the States to take direct actions if Federal oversight was failing. Unfortunately they were never codifed, but that doesn't mean we can't make our Congress codify them for us. (Preferably as a Constitutional Amendment.) The goal of all the framers was to avoid the kind of bloody revolution they were having in France at the time. And we've been pretty good at that, even when we do fail to fully live up to our Charters.
This also means that all these states and communities that have voted down the Patriot Act and voted for Impeachment are doing so symbolically, for now, and they are doing so peaceably. But if there's enough momentum, we could - peaceably - move our elected officials to create statute or Amendment to allow us to take these actions as well. The elements are all there in Jefferson's writings. All we need is persistence and a willingness to vote non-compliant members of Congress out of office. We're in charge. Special interests will try to influence us, but it is up to us and if our representatives are not doing their jobs, it is our responsibility to see that they are FIRED! It is our responsibility to go to our state legislatures if our states have been gerrymandered to a fare-thee-well and we feel our elections are suffering. It is our responsibility to ensure our states provide clean, fair elections WITHOUT CONFLICTS OF INTEREST. And many thanks to the thousands of citizens activists out there who are doing just this, and doing it peaceably, just as the framers hoped.
5) The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next session.Emphasis mine. Recess appointments were not intended for anything other the most critical vacancies. And a mechanism did have to exist as Congress did not meet year-round then as it does now. The use of this provision by recent presidents, Bush most notably (but not exclusively), to install cronies, may meet the "letter" of the law, but not its spirit.
6) He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient...This was intended to be in writing, not a speech. And that huge budget the administration submits about the same time, usually in January? That's what modern presidents do when they "recommend to their consideration...." In other words, it's barely worth the paper its printed on, and the only reason it's considered IS partisan.
7) He may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect tothe Time of Adjournment, he may adjourn them to such Time as he shall think proper....Okay, this is important. Say Congress has put in its three months, but the president gets word that Morocco has sent an Armada our way. Then it would be prudent for him to call Congress back so that CONGRESS may deal with the problem, and declare war if necessary.
8) He shall receive Ambassadors and other public Ministers...This pretty much goes with #4 above. In other words, remember on
The West Wing how Bartlet would ceremonially welcome new ambassadors in the Oval? That's what this refers to.
9) (Finally,)
He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. (THE END.)
Now this is his (or her) charge to run the bureaucracy, and commission military officers, which were usually always available even if the militia was not in readiness. In fact, Congress is ordered in Article 1 that no militia shall be "standing" (in readiness). It's this kind of gray area that allowed presidents to create institutions like the DOD and the CIA. Okay, well Truman. Again, not a violation of the
letter of the law, but certainly a perversity of its spirit. (And I actually admire much of what Truman did. But not so much the way the DOD was created, nor the conversion of the OSS to the CIA.)
You will also notice that there is no mention in this section that a president may write signing statements indicating which laws he likes and which he doesn't. (That GWB actually thinks he can state whether or not a law is Constitutional in these statements shows just how ignorant of the Constitution he IS.) He may write statements discharging instructions. He may write Executive Orders with regard to the administration of the activities the bureaucracy. For example, he may declare a Federal Holiday for administration employees, as Lincoln did for Thanksgiving. As a courtesy, the country usually follows suit. But as we saw with Martin Luther King Day (unfortunately), it is NOT required. It is NOT a law. Only Congress makes those.
And for those who want to learn more about Congress's job description in Article 1, you will also learn that the executive veto serves ONE purpose. If the bureaucracy can execute the law, the president signs the law. If not, he vetoes it and sends it back to Congress. If Congress really wants this law enforced, it must override the veto by two-thirds and provide the resources necessary to ALLOW the executive to enforce the law. (This my friends, is why the judiciary balks at the line-item veto, in case you wondered. Based on modern conventions, one would think the line-item veto a useful thing, but it's not Constitutional at the Federal level. It can be useful in States where the Governors generally have more power to interact with legislatures.)
Now when you compare these nine duties with the 30-odd duties of Congress/the People, you will understand why the framers never even considered the branches co-equal, and they are not. As for the Judiciary (Article 3), we can discuss that more another time, but it basically has the dual role of Constitutional and statutory oversight and adjudicating law enforcement issues - most of which actually occur at the state level. So the judiciary at the Federal level is not co-equal either.
All three branches and the Fourth Estate (citizen oversight, generally via the press) are all
equally essential to ensuring the proper functioning of a Democratic Republic, by overseeing each other's acts. That's as far as "co-equal" goes. And, oh yeah, before I forget No. 2 Pet Peeve, the president is NOT automatically "Commander-in-Chief." He is named CinC by Congress when Congress declares war, and that's assuming that Congress has confidence in naming him to the position.
If the citizens had really understood the job description of the executive, they would have seen that GWB does not have the resume to do the job, and he would not have been hired by the Sovereigns.
Oh, wait, I forgot. HE WASN'T. He was installed by an overreaching SCOTUS, and "re-elected" by partisan conflicts-of-interest. If it weren't for those two pesky problems, he could never have passed muster. You know, maybe he really is a likeable guy. (He wasn't when I knew him, but that was years ago, and people do change.) He certainly seems like the go-to guy if you want to buy a used pickup truck or a new chainsaw for clearing brush.
But president? Nah, not even close. And he's proven this. Every day for over five years.
