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Continuing Debates Over the President

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Title: Continuing Debates Over the President


1
Continuing Debates Over the Presidents
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 lawson the
    contrary it has the force of laws, and to be
    carried into execution, like all other laws, by
    the executiveTo 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
    designates particular cases of executive
    powerIt 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 clauseand 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 isthe 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.

7
(No Transcript)
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
    originatedif 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 presidents 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
TRs Stewardship Theory
  • Every executive officeris 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
Tafts 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, its not
    illegalIf 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
    Presidents 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 Presidents 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
    presidents authority to use force in
    circumstances such as those created by the
    September 11 incidents. Neither statute, however,
    can place any limits on the Presidents
    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 dont want to be in the position of asking
    Congress to authorize the use of force when the
    president already has that full authority. We
    dont 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 warWe
    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?
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