Title: Continuing Debates Over the President
1Continuing Debates Over the Presidents
Constitutional Powers
2The Patriot King
3Helvidius (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
4Helvidius 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.
5Pacificus (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
6Pacificus (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)
8Debate over the Veto
9Pocket 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
10Debate over the Veto
11Taylor 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.
12Woodrow Wilson on the Veto
- The presidents power of veto is, of course,
beyond all comparison, his most formidable
prerogative. - --Congressional Government
13Vetoes in the 19th century
14Vetoes in the 20th Century
15TR vs. Taft
16TRs 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.
17Tafts 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.
18Prerogative Power in the interests of national
security
19Prerogative 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.
20Lincoln 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.
21Prerogative Power in the interests of national
security
22Nixon 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.
23More Current Debates
24Yoo 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.
25Yoo 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.
26War 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
27Byrd 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)
28Other current debates
- Executive privilege
- NSA Wiretapping
- Detainees and the Geneva Convention
- Signing statements
292 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?