Continuing Debates Over the President’s Constitutional Powers

1. Continuing Debates Over the President’s Constitutional Powers

2. The Patriot King

3. Helvidius (Madison) “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, …must presuppose the existence of laws. A treaty is not an execution of laws…on the contrary [it has] the force of laws, and to be carried into execution, like all other laws, by the executive…To say then that the power of making treaties, which are confessedly laws, belongs naturally to the department which is to execute the laws, is to say that the executive department naturally includes a legislative power. In theory this is an absurdity. In practice a tyranny…”

4. …Helvidius continued… “The power to declare war is subject to similar reasoning. A declaration that there shall be war is not an execution of laws; it does not suppose pre-existing laws to be executed.…Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued, or concluded.”

5. Pacificus (Hamilton) “The second article of the constitution of the United States establishes [executive power then] designate[s] particular cases of executive power…It would not be consistent with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause…[and] the different mode of expression employed in the constitution in regard to the legislative and executive powers confirms this inference…”

6. Pacificus (continued) “…If the legislature has a right to declare war, it is…the duty of the executive to preserve peace till war is declared; and in fulfilling this duty it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government….It is consequently bound, by executing faithfully the laws of neutrality, when the country is in a neutral position, to avoid giving cause of war to foreign powers.”

8. Debate over the Veto

9. Pocket Veto • Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated…if approved by two thirds of [both houses], it shall become a Law. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. –Article I, section 7

10. Debate over the Veto

11. Taylor on the veto: “The veto is an extreme measure, to be resorted to only in extraordinary cases, as where it may become necessary to defend the executive against the encroachments of the legislative power or to prevent hasty and inconsiderate or unconstitutional legislation.”

12. Woodrow Wilson on the Veto “The president’s power of veto is, of course, beyond all comparison, his most formidable prerogative.” --Congressional Government

13. Vetoes in the 19th century

14. Vetoes in the 20th Century

15. TR vs. Taft

16. TR’s Stewardship Theory • “Every executive officer…is a steward of the people bound actively and affirmatively to do all he can for the people….It is not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”

17. Taft’s Literalist Theory “The president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise….ascribing an undefined residuum of power to the president is an unsafe doctrine that might lead under emergencies to results of an arbitrary character, doing irremediable injustice to private right.”

18. Prerogative Power in the interests of national security

19. Prerogative Power • Executive power that is above and beyond the law but can be used in order to act in the best interests of the people.

20. Lincoln on prerogative power “Was it possible to lose the nation and yet preserve the Constitution? By general law, life and limb must be protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation. Right or wrong, I assume this ground, and now avow it.”

21. Prerogative Power in the interests of national security

22. Nixon on the Huston plan “Well, when the President does it, it’s not illegal…If the president, for example, approves something because of national security, or in this case because of a threat to internal peace and order of significant magnitude, then the President’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law….Lincoln said… “actions which otherwise would be unconstitutional could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.””

23. More Current Debates

24. Yoo MemoMemorandum Opinion for the Deputy Counsel to the President, Sept. 25, 2001 • In light of the text, plan and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President’s constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001.

25. Yoo MemoMemorandum Opinion for the Deputy Counsel to the President, Sept. 25, 2001 • Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nevertheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. In both the War Powers Resolution and the Joint Resolution, Congress has recognized the president’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. Those decisions, under our Constitution, are for the president alone to make.

26. War in Iraq “We don’t want to be in the position of asking Congress to authorize the use of force when the president already has that full authority. We don’t want, in getting a resolution, to concede that it was constitutionally necessary.” --anonymous senior administration official, quoted in the Washington Post, August 26, 2002

27. Byrd on the Iraq resolution “We are being hounded into action on a resolution that turns over to President Bush the Congress’ Congressional power to declare war…We may not always be able to avoid war, particularly if it is thrust upon us, but Congress must not attempt to give away the authority to determine when war is to be declared. We must not allow any president to unleash the dogs of war at his own discretion and for an unlimited period of time.” (NYT 10/10/02)

28. Other current debates • Executive privilege • NSA Wiretapping • Detainees and the Geneva Convention • Signing statements

29. 2 mini debates 1. Should the vesting clause be interpreted to grant the president broad unenumerated authority? Is the president a “steward” of the people? 2. Should the president have prerogative powers? Is it important that the president be freed from always obeying the laws and the Constitution?