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Thu Feb 25, 2021, 05:24 PM


A case Against the Executive Branch of the United States of America

A core tenant of our nation is that no one—not even the president—is above the law. The Take Care Clause commands that a president shall “take Care that the Laws be faithfully executed,” and the president is required to take an oath to “faithfully execute the Office of President” to assure that happens. But over the centuries, presidential power expansion and abuse of power have been growing. It’s not a recent trend appearing with Trump, and is not subject to only one party.

Abraham Lincoln’s suspension of habeas corpus, FDR’s “internment” of hundreds of thousands of ethnic Japanese, Andrew Jackson’s removal of the Cherokees from their homeland in the southern Appalachians to Oklahoma, The often overlooked intervention of Theodore Roosevelt in Colombia, Trump Inciting an insurrection (just to give a few examples)…

The unitary executive theory is a theory of United States constitutional law which the President possesses the power to control the entire executive branch. The doctrine is rooted in Article Two of the United States Constitution, which vests "the executive power" of the United States in the President. The Vesting Clause of Article II provides, "The executive Power [of the United States] shall be vested in a President of the United States of America." Supporters of the unitary executive theory argue that this language, along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...", creates a "hierarchical, unified executive department under the direct control of the President.”. The general principle that the President controls the entire executive branch was originally innocuous, but extreme forms of the theory have since developed. Former White House Counsel John Dean explains: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters." The phrase "unitary executive" was discussed as early as the Philadelphia Convention in 1787, referring mainly to having a single individual fill the office of President, as proposed in the Virginia Plan. The alternative was to have several executives or an executive council, as proposed in the New Jersey Plan and as promoted by Elbridge Gerry, Edmund Randolph, and George Mason.

According to Hamilton, the unenumerated executive powers that are vested solely in the President "flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government."

Those other parts of the Constitution include the extensive powers granted to Congress. Article I of the Constitution gives Congress the exclusive power to make laws, which the President then must execute, provided that those laws are constitutional. Article I, Section 8, clause 18 of the Constitution known as the Necessary and Proper Clause grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof". The Constitution also grants Congress power "To make Rules for the Government and Regulation of the land and naval Forces." The theory of the unitary executive can only be legitimate insofar as it allows Congress to wield its constitutional powers while ensuring that the President can do the same.

Loyola Law School professors Karl Manheim and Allan Ides write that "the separation among the branches is not and never was intended to be airtight," and they say the President's veto power is an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power being exercised by the executive branch, as necessary elements of the administrative state, but they contend that ultimately all administrative power belongs to Congress rather than the President, and the only true "executive" powers are those explicitly given in the Constitution..

David Barron (a federal judge) and Marty Lederman have also criticized the strong version of the unitary executive theory. While they acknowledge that there is a case for unitary executive within the armed forces, they argue that the Constitution does not provide for a unitary executive outside the military context, and that the Commander in Chief Clause would be superfluous if the same kind of unitary authority resulted from the general constitutional provision vesting executive power in the President.

Since Watergate, there has been a consensus that presidents may not use their official powers to interfere in the administration of justice to protect themselves, place themselves above the law, or target their political opponents. The Constitution — in two places — requires the president to act in good faith to enforce the laws. It’s long overdue that it is enforced.

“The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period.”― Thomas Jefferson, Democracy in America
The executive branch has undergone drastic changes over the years, making it vastly different from what it was under George Washington. Today's executive branch is much larger, more complex, and more powerful than it was when the United States was founded, let alone, intended.

When the founders were initially deciding what powers and responsibilities the executive branch would have, they were influenced by their experience with the British government under King George III. Having seen firsthand the king and other European leaders abuse their powers, the writers of the Constitution wanted strict limits on the power that the president would have. At the same time, they wanted to give the president power to conduct foreign policy and to run the federal government without being hampered by the squabbling of legislators from individual states. The framers wanted to design an executive office that would provide effective and coherent leadership but never become a tyranny. Article II of the Constitution. The specific powers given to the president are few, and the language that is used to describe them is often brief and vague. Specifically, the president has the authority to be commander in chief of the armed forces; to grant pardons; to make treaties; and to appoint ambassadors, Supreme Court justices, and other government officers. As well as the president is responsible for making sure "that the Laws be faithfully executed" (§ 3), though the Framers did not specify how the president was to accomplish this goal. The Framers made no specific provisions for a staff that would assist the president; the Constitution says only that the president 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" (§ 2).To make sure the president could not become too powerful, the Framers made many powers dependent upon the will of Congress. For example, the president is given the power to make treaties with foreign countries, but those treaties must be approved by the Senate by a two-thirds majority. The Framers did not divide powers among the branches, they required the separate branches to share power, resulting in a complex system of checks and balances that prevents any one branch from gaining power over the others.

Alexander Hamilton, writing as Publius in The Federalist Papers, argued that “t has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.”

The real growth is in the 20th and now the 21st century. You have the great expansiveness of the size of government. Most of that's in the executive branch, and so the president has more means, many more staff, many more people to help him carry out his preferences, not the will of congress or the people.

And you also have, over time, the delegation of great amounts of power to the president by Congress, including things that are specifically delegated to the Congress by the Constitution, trade power, for example.

In other areas, presidents have sort of pushed hard to try to take over the war power, for example. And Congress on the whole has been pretty lax about that (The U.S. has not declared war since WW2, yet we have been in constant conflict in areas that has nothing to do with WW2).

For the last quarter century, the checks and balances of American government have been usurped by the merger of two powerful currents. One is the gathering concentration of power in the hands of the federal executive. Both Democratic and Republican, although at different rates of acceleration have been guilty. The second has been the campaign of the right wing of the Republican Party since 1981 to steer the national government toward the fulfillment of a conservative social, economic, and foreign policy agenda. Together, the growing executive power and the campaign for partisan dominance have produced aggressive presidents largely immune to legislative control or judicial review. This constitutional storm has put our democratic republic at risk, upending many of the practices that have helped to sustain the checks and balances in our national government, at least since the end of World War II.

It is the legal theorists working for our most recent Republican Administrations who have most vigorously championed presidentialism as an accurate reading of what our constitutional framers historically intended. The historical record does not show presidentialism as good practice, however. We frequently find that unilateral presidential authority prompts a narrowness in consultation, and a rigidity in outlook that break down the quality of executive decision making. Presidentialism operates in a way that undermines other values, such as allegiance to the rule of law and respect for coequal branches and divergent political outlooks.

But how did we get here? Congress has been ceding its traditional authorities to the executive branch. One example is the exercise of emergency powers, an executive branch activity that has become unchecked. At the moment, there are nearly three dozen declared emergencies and Congress has only voted on one of them, with the longest-running emergency dating back to 1979. A declaration of national emergency can give the president more than 100 different powers derived from a variety of laws. Administrations that are hyper-partisan have been able to use emergency powers with little to no input from Congress. Given the number of emergency powers available and how impactful those powers can be, congressional oversight of them is vital.

In short, emergency powers can make the presidency imperial if unchecked. To complicate things, the mechanism that allowed a congressional majority to end an emergency was deemed unconstitutional by the Supreme Court in 1983, thereby effectively the check on executive authority in the law. Congress never reviewed an emergency until 2019. Rather than allowing emergencies that are no longer necessary to lapse, successive administrations have routinely and serially renewed ongoing emergency declarations.
The Brennan Center for Justice has compiled a list of 123 statutes that enable the president to circumvent ordinary lawmaking processes upon the declaration of a “national emergency,” That is asking for authoritarian/dictatorial rule.
Congress has been steadily losing its power for generations. The reason is the growth of the executive branch from a small operation as intended by the framers of the Constitution into permanent military operations, extensive departments and regulatory agencies, and a large staff that attempts to direct it. Throw in a hyper-partisan congress and the result is that politics becomes more focused on counting wins or losses for the party of whoever is president at the time.

Congress has freely allowed its own authority to lapse or crumble—on impeachment, on war powers, on oversight and on budgetary matters. And that power has shifted to the executive branch. Congress, by failing to enforce its own prerogatives, is effectively rewriting the Constitution.

But while history has tolerated initiation of military conflicts without formal declarations of war by the legislative branch, Congress is not out of the war-making. The Constitution gives Congress the power to appropriate money to the military. There was no standing army or navy at the time the Constitution was ratified, so a president of the early 1800s would have had to consult Congress to use military force, a formal declaration of war. According to a study conducted at Brown University, the United States has “spent and obligated” nearly $5.9 trillion in post 9/11 wars, which have contributed to approximately 500,000 civilian and military deaths. The U.S. has been fighting al Qaeda in Afghanistan without interruption for 18 years and while its activities have expanded to 39 percent of the world’s nations. Congress has let this happen.

Congress has also weakened itself by allowing the president to flout its appropriations power by simply declaring a national emergency, and then diverted funds appropriated for other purposes.

Because congress has relented and subjugated itself to ones it is not supposed to (see my article A case against the Congress of the Unites States of America), we have opened the door to presidents who crave power, control, and are subject to avarice, and hyper-partisan politics instead of what is best for us. Every subsequent executive has stressed and strained what the previous one has, further building a power that was never intended to be there.

We need an executive branch that believes in a limited executive branch. Without one, our nation has the highest debt/deficit, bloodiest history (been in military conflict for 225 out of the 244 years it has existed), and a presidency that is more about optics than what is actually needed. We need a presidency that remembers it works for us, not the party, personal interest, the people.


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Reply A case Against the Executive Branch of the United States of America (Original post)
franzwohlgemuth Feb 2021 OP
tirebiter Feb 2021 #1
Name removed Feb 2021 #2

Response to franzwohlgemuth (Original post)

Thu Feb 25, 2021, 06:14 PM

1. A case against unitary executive

Would be more accurate. Too bad Bill Barr didn’t read it 20 years ago.

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