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To Faithfully Execute the Presidency of the United States
Nancy Salvato
"History doesn't repeat itself, but it does rhyme." -- Mark Twain
Nature and Scope of Presidential Powers
In his column, "Not the first president to break promises" found in The Baltimore Sun, Ron Smith writes:
There's a video online lasting less than two minutes of a speech candidate Obama made, in which he promised the following things of his presidency: 1) making government open and transparent; 2) making it "impossible" for congressmen to slip in pork barrel projects; 3) making meetings where laws are written open to the public; 4) promising "no more secrecy"; 5) that the public would have five days to look at any bill before he signed it into law; and 6) saying "We will put every pork barrel project online." (1)
In "The Cult of the Presidency: America's Dangerous Devotion to Executive Power" (Kindle Edition) Gene Healy writes:
President Bush promised to rescue America�s children from gangs, fight steroids in sports, �move [America] beyond a petroleum-based economy,� and �lead freedom�s advance� around the world. (2)
When studying history, it�s not so much a memorization of the details but noticing the emerging patterns that is most important. Any study of the 20th century American presidency would reveal that candidates actively seeking to become the Chief Executive of the United States make campaign promises to the people that cannot be addressed using the powers of the executive office. Once one detects such a pattern playing out in a presidential campaign, one can more realistically assess how successful a presidency might prove; in essence, it is possible to anticipate the next verse in the rhyme.
Plebiscitary Presidency
20th century presidential candidates� campaign to win what has become known as a �plebiscitary presidency,� in other words, �an office of tremendous personal power drawn from the people � and based on the new democratic theory that the presidency with all powers is the necessary condition for governing a large democratic nation.� (3)
Prospective voters should be aware that, when presidential candidates make promises that are not within the powers granted to the executive branch of the government, the enactment of these assurances may necessitate an expansion of executive authority. Such precedent is difficult to reverse and upsets the checks and balances between federal and state powers as well as between the three branches of government.
In the long run, this may be worse than breaking one�s word. An electorate may believe candidates promising such a wide range of reforms disingenuous, but two equally plausible scenarios are that aspirants to the presidency misjudge the amount of influence they will be able to actually generate, or they may believe that if they are elected, �we the people� have given them a mandate to make sweeping reforms, even if no regard is paid to maintaining integrity of the office.
�The modern president considers himself the tribune of the people, promising transformative action and demanding the power to carry it out.� (4)
In the early years of the republic, this was not so much an issue. In part, this was because candidates were not appealing directly to the voters -- who now hold the power to influence the choice of each party�s nomination during their run for office.
The Influence of Presidential Primaries
Charles Jones explains, in The American Presidency: A Very Short Introduction (Kindle Edition):
The nomination of presidential candidates has evolved historically in several stages:
1) expected choice of national figures;
2) congressional caucus endorsement;
3) national party conventions;
4) conventions supplemented by primaries;
5) primaries establishing front-runners; and
6) primaries determining the choice. (5)
Today, each party�s nomination for president is determined during the primaries. States trying to influence the party�s front runners have moved their primaries earlier and earlier in the calendar, which has forced the general election campaigns to begin much earlier. This turn of events has frustrated many Republicans of the belief that by the time they have a chance to vote in the Republican primaries, their favored candidates had already been run out of the race by �open primaries� (in which democrats and republicans can vote) held in early primary states with a notable liberal slant.
Gene Healy sees even wider ranging implications. Primaries in which presidential candidates appeal to voters represent a paradigm shift and are at odds with what the Framers believed in the best interest of the people.
A Constitutional Presidency
Healy writes that the Framers envisioned a constitutional presidency, �designed to stand against the popular will as often as not, with the president wielding the veto power to restrain Congress when it transgressed its constitutional bounds.� (6)
Furthermore, it was never intended that the president be elected directly by the people. Dr. Jonathan Mott, who researches and writes at ThisNation.com explains:
There are two primary reasons the Founders chose to select presidents via the electoral college instead of by direct, popular voting. The first reason was their lack of trust in the judgment of the people. They were fearful that a well-spoken but not well-intentioned individual could flatter the people and win their support. They hoped that a secondary body, such as the Electoral College, would not be susceptible to such attempts at manipulation. This reason for the Electoral College is virtually meaningless with changes that have "bound" electors to cast their votes for the candidate who wins the majority of the popular vote in each state.
The second reason for choosing presidents by electoral votes instead of by popular vote is to give the states a voice in the presidential election. The principle of federalism was and is a critical feature of the American political system. By placing states in this important position in the selection of the country's leader, the Framers sought to maintain the position of states as important entities in the American political system. (7)
Healy explains that the Framers feared national leadership because of the possibility for, "authoritarian rule by a demagogue who would create an atmosphere of crisis in order to enhance his power.� (8)
He adds, �Virtually every major advance in executive power has come during a war or a warlike crisis.� (9)
Moreover:
Early presidents often acknowledged the impropriety of popular appeals. Thus, in 1827, turning down an opportunity to make a speech at the opening of the Pennsylvania canal, President John Quincy Adams declared �this mode of electioneering is�unsuitable to my personal character and the station in which I am placed.� (10)
As a matter of fact, Andrew Johnson�s impeachment was instituted, in part, because �the purpose of Johnson�s speeches� were �to rouse public opinion in support of his policy initiatives,� considered illegitimate at the time. (11)
Today, �Permanent campaigning is now a notable feature of governing. Polls are regularly taken on major issues, and the president�s job approval is tested frequently. High job-approval ratings are thought to be evidence of public support.� (12)
Eligibility and Election to Office
Article 2, Section 1, has been the subject of debate by those who would like to see the elimination of the Electoral College and by those who would like to see Congress legislate measures which would establish a means to confirm that any candidate for presidency meets all the requirements to hold office, including that of natural born citizenship.
The Electoral College
�Adoption of the Electoral College plan came late in the Convention, which had previously adopted on four occasions provisions for election of the executive by the Congress and had twice defeated proposals for election by the people directly.� (13)
The Electoral College corrects for defects. It balances out errors and faults in the election process. Mathematicians will explain that votes cannot be counted accurately within a half of a million. In a close election, having the electoral college in place corrects for deficiencies. Indeed, multiple wins in multiple venues produces a stronger candidate. Therefore, our current system compensates for inaccuracies. Any person voted in as chief executive is a product of multiple constituents; 50 elections, as opposed to one.
Although we have a national citizenship, we don�t have a national people. Those serving in the national government are a reflection of 50 state peoples; multiple peoples residing in different states, each state represented in the federal system of government. Remember, each state ratified the constitution. There have never been a national people making national decisions. Weak states have a place under the electoral system that wouldn�t exist otherwise. By casting all of a state�s votes one way, the system gives every state the importance it was meant to have.
Any sort of national election would distort the power of the executive branch; giving it a power that no other branch could counterbalance. We wouldn�t have a president; we would end up with a dictator because a national plebiscite puts the president above every other branch. This is why electors in the college cast their votes to reflect the majority in their state. If there were proportional votes cast, again, there would be a national plebiscite.
Natural Born Citizenship
According to Title 8 of the U.S. Code, "citizens of the United States at birth" include:
� Anyone born inside the United States, subject to the jurisdiction of the United States
� Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
� Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
� Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
� Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
The status of �natural born citizen� would seem to be conditional upon being born �subject to the jurisdiction� of the United States and not being born with more than one allegiance if understood within the context of the time when it was written. However, the courts set the precedent that under the common law rule of jus soli -the law of the soil- persons born in the United States generally acquired U.S. citizenship at birth.
There is a need to have an acceptable definition of natural-born citizen and the definition must be ensconced in the Constitution. Furthermore, evidence of birth in allegiance to the United States must be required of all candidates for president of the United States.
President Elect
The time between the election and inauguration is critical for the President-elect. This is because the first 100 days in office is seen as the new president's best chance to reshape the nation according to his or her own agenda and vision and there is an expectation that the incoming president prove his or herself during this window. Therefore, if the President can hit the ground running, there is a greater likelihood that his or her blueprint will be incarnated.
Presidents-elect have approximately ten weeks to form and prepare their presidencies. In that time they set policy priorities; make critical appointments [staff and cabinet]; establish connections with Congress, the bureaucracy, the press, and other governments; and prepare to move into empty offices in the White House and other government buildings. (14)
A Peaceful Transfer of Power
Additional factors influence how aggressively a president can further his or her designs for change. These include the president�s margin for winning office, how ambitious the program for change, the legacy of the previous president (which might include a prior scandal), the party currently holding the majority in the House or Senate, the present economic situation, and ensuing military engagements. Prior experience working as a governor or legislator influences the effectiveness of an incoming chief executive. Consideration must be given to pre-existing programs, such as Medicare or Medicaid, and to how available resources are currently allocated before suggesting that the members of the legislature introduce a bill or resolution. (15)
Whoever wins office will likely not meet everyone�s expectations; presidents �are held accountable for governing whether or not they have the political resources to rule.� (16)
Powers and Duties of President
In any discussion about the Executive Branch of government, one must give heavy consideration to this branch�s shared power with the Legislature because the Framers took great pains to prevent any of the three branches from gaining unitary authority over foreign or domestic matters. This distribution of responsibilities was intended to prevent tyranny or unnecessary foreign entanglements. That said, in the more recent decades since the ratification of the US Constitution, one might legitimately question how faithfully each branch of government has adhered to the fundamental law of our country and whether or not the checks and balances have eroded sufficiently to affect the integrity of our rule of law.
Division of War Powers
Article 2, Section 2 reads:
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.
Article 1, Section 8 reads:
The Congress shall have power To � declare war.
Gene Healy defers to James Madison�s thoughts on this subject:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man. (17)
Despite what seems straightforward, unitary executive theory comes to a different conclusion with which Healy disagrees, an assertion by Unitarian theorist John Yoo�s that the Framers understood making war to be the president�s prerogative, modeled after the British monarchy.
�According to Yoo, in the 18th century,� declare war, �indicated the power to issue a formal proclamation of war.� (18)
Proclamations served two purposes.
1.) Put an enemy nation on notice that a state of war exists.
2.) Inform citizens of their new relationship with the enemy state. (19)
Presently, there is no consensus for Yoo�s interpretation, above, or the case Gene Healy makes that unitary executive theory is entirely contradictory to the enumerated powers outlined in Article 2, Section 2 and Article 1, Section 8 above.
According to Richard F. Grimmett, Specialist in National Defense, �It is generally agreed that the Commander in Chief role gives the President power to utilize the armed forces to repel attacks against the United States.� (20)
However, there is a question as to whether the president has the authority to �send forces into hostile situations abroad without a declaration of war or other congressional authorization.� (21)
According to the Theory of Presidential Power, the president�s primary responsibility �for the conduct of United States foreign relations carries very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States. . .� (22)
According to Saikrishna Prakash, responding militarily to an act of war may be considered a declaration of war. This is because:
Even after another nation had declared war, the targeted nation had a decision and a possible declaration to make because war was not always an obvious response� Congress might choose not to declare war at all and instead urge the Executive to negotiate a settlement, leaving the Executive to order defensive measures coupled with treaty talk. (23)
The difference between the president instructing �the armed forces to defend the nation�s borders against an armed invasion� or �act in self-defense,� should it be fired upon, �and an unauthorized declaration of war reflects the distinction between acting in self-defense and acting in a manner that commits the nation to a war.� (24)
When passing (over a presidential veto) the War Powers Resolution of 1973, Congress interpreted the presidential powers of Commander-in-Chief as having been limited to introducing �forces into hostilities or imminent hostilities,� pursuant to 1) a declaration of war, 2) specific statutory authorization, or 3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." (25)
This was passed, despite the executive branch�s contention that:
The President has much broader authority to use forces, including for such purposes as to rescue American citizens abroad, rescue foreign nationals where such action facilitates the rescue of U.S. citizens, protect U.S. Embassies and legations, suppress civil insurrection, implement the terms of an armistice or cease-fire involving the United States, and carry out the terms of security commitments contained in treaties. (26)
To date, there is no consensus for the constitutionality of the War Powers Act, either. Saikrishna Prakash predicts that:
An attack on Iran made without congressional approval would trigger a firestorm precisely because of profound disagreement about what it means to �declare war.� (27)
Treaties and Sovereignty
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;
In "The Constitution and American Sovereignty," Jeremy Rabkin provides context for the validity of a treaty:
The Constitution provides for treaties, and even specifies that treaties will be �the supreme Law of the Land�; that is, that they will be binding on the states. But from 1787 on, it has been recognized that for a treaty to be valid, it must be consistent with the Constitution�that the Constitution is a higher authority than treaties. And what is it that allows us to judge whether a treaty is consistent with the Constitution? Alexander Hamilton explained this in a pamphlet early on: �A treaty cannot change the frame of the government.� And he gave a very logical reason: It is the Constitution that authorizes us to make treaties. If a treaty violates the Constitution, it would be like an agent betraying his principal or authority. And as I said, there has been a consensus on this in the past that few ever questioned. (28)
Giving further validation to this argument, Justice Black stated in Reid v. Covert (1957):
It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. 29
Presidential Appointments
�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
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.
President Bush, �frustrated by the refusal of Senate Democrats to permit a final vote on [John R] Bolton's nomination,� used the power granted to him under Article 2, Section 2, when he �installed John R. Bolton as ambassador to the United Nations.� (30)
�[President] Bush said he resorted to the 17-month recess appointment � to send a resounding message that the White House is serious about reforming the United Nations.� (31)
Resorting to such a tactic in order to move his agenda forward did have some repercussions:
�The move, ending a grinding five-month battle, drew sharp protests from Democrats and a mixed response from the foreign diplomats Bolton will be working with at U.N. headquarters in New York.� (32)
It could be argued that a recess appointment was not made in the spirit of the law. According to David Welna �throughout American history, presidents have angered senators by using recess appointments.� (33)
He adds, �They've used it for both executive and judicial appointments. President Eisenhower, for example, recess-appointed three Supreme Court justices, including Chief Justice Earl Warren. Emory University's Mayton says seating judges through recess appointments has a potential drawback for judicial independence.� (34)
According to Professor William Mayton, �The fear is that a judge serving on a recess appointment will be looking ahead to being confirmed or voted down as his term ends by the Senate and that's going to cause the judge to perhaps bend in his or her decisions.� (35)
The courts have not yet challenged such an expansion of executive power.
He shall take Care that the Laws be faithfully Executed
Executive Order.
"Stroke of the pen. Law of the Land. Kinda cool." Paul Begala, former advisor to President Clinton.
According to Dr. Mott, the President generally uses Executive Orders �to direct federal agencies and officials in their execution of congressionally established laws or policies.� (36)
However, sometimes Congress gives the president tremendous latitude when determining �how a law is to be executed.� (37)
This can result in the President being able to make �major decisions, even law, without the consent of Congress.� (38)
With regard to civil service legislation, Congress deliberately left it to the president to fill in the details. During the Great Depression and World War II, President Franklin D. Roosevelt used executive orders to �seize property and control communication. FDR used these powers to order the internment of Japanese subjects and Japanese Americans who lived in the Pacific states.� (39)
Congress has been criticized for passing vaguely written laws, �in order to to please all parties involved in their creation.� (39)
By failing �to spell out in detail how a law is to be executed,� the President is by default, given power to legislate through Executive Order. Presidents rightly cite executive order as the only way to clarify vaguely written laws passed through Congress. (40)
That is not to say presidents haven�t interpreted broadly their oath to preserve, protect and defend the Constitution.
Presidential Prerogative
�Prerogative doctrine is the rationalization that the president is allowed to take highly unusual actions -- what some would consider unethical or even illegal -- in order to preserve, protect or defend the Constitution.� (41)
Examples abound. President Andrew Jackson considered the Bank of the United States corrupt, �so he arbitrarily ordered all the U.S. Treasury money to be placed in various state banks.� (42)
Presidential Signing Statements
Signing statements function to explain what the president believes will be the effects of a bill passed into law, direct �subordinate officers within the Executive Branch how to interpret or administer the enactment,� and inform all interested parties that the Executive believes enforcement of a �particular provision would be unconstitutional� or that the president believes the entire bill to be unconstitutional, therefore it will not be enforced should it �create an unconstitutional condition.� (43)
Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes. (44)
Conclusion
After thoroughly examining all three branches of government, the Executive Branch is in many ways the most intricate and the most malleable. With so many important decisions to be made, would-be-holders of this office would be well served to study the prominent thinkers on the Constitution before declaring their candidacy. Visionless action or acting for political reasons in order to be viewed as effective leaders in the public eye has the effect of hurting more than helping the country.
Article 6 of the Constitution says this:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Although this article specifies that there should be no religious test required as a qualification to hold any office, it does not provide direction as to whether our elected representatives or chief executive should be expected to have more than the most basic understanding the U.S. Constitution. Doctors must go to medical school, lawyers must go to law school, teachers must be highly qualified in their subject area�to what standard must we hold those elected to the three branches of our federal government?
At the time of the Constitution�s ratification, states had property requirements as well as other prerequisites for would-be-voters and office holders. They reflected the belief that freeholders, as property owners were called, had a legitimate interest in a community's success and well-being, paid taxes and deserved a voice in public affairs, had demonstrated they were energetic and intelligent enough to be trusted with a role in governance, and had enough resources to be independent thinkers not beholden to the wealthiest class. English jurist William Blackstone wrote in the 1700s:
The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty.
Colonies also restricted opportunities to serve in their legislatures. Immediately before the Revolution, five insisted on significant property requirements for officeholders. But candidates tended to be wealthy anyway. (45)
As time passes, the reasons for and importance of having such qualifications have been forgotten in the quest for democratic reform. Perhaps it is time have another look at what was swept aside in the name of progress.
"The preservation of the sacred fire of liberty, and the destiny of the republican model of government, are justly considered deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American people." -- George Washington
Bibliography
1) Smith, Ron. Not the first president to break promises The Baltimore Sun, November 6, 2009
2, 3, 4, 6, 8, 9, 10,11, 17, 18, 19) Healy, Gene. The Cult of the Presidency: America's Dangerous Devotion to Executive Power, Cato Institute, 2008
5, 12, 14, 15, 16) Jones, Charles The American Presidency: A Very Short Introduction, Oxford University Press
7) Mott, Jonathan. What is the Electoral College and how does it work? ThisNation
thisnation.com/question/051
13) Electoral College Find Law for Legal Professionals, FindLaw.com
caselaw.lp.findlaw.com/data/constitution/article02/02
20, 21, 25, 26) Grimmett, Richard F. Congressional Research Service Report, RL32267 -- The War Powers Resolution: After Thirty Years
fas.org/man/crs/RL32267
22 The Cold War and After: Presidential Power To Use Troops Overseas Without Congressional Authorization, FindLaw.com
caselaw.lp.findlaw.com/data/constitution/article02/08
23, 24, 27) Prakash, Saikrishna. Unleashing the Dogs of War: What the Constitution Means by �Declare War,� Cornell Law Review
lawschool.cornell.edu/research/cornell-law-review/upload/PrakashUnleashing
28) The Constitution and American Sovereignty, Imprimis, Hillsdale, July 2007
hillsdale.edu/news/imprimis/archive/issue.asp?year=2009&month=07
29) Reid v. Covert, Cornell Law Review
law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO
30, 31, 32) Bush Names Bolton U.N. Ambassador in Recess Appointment, Washington Post, August 1, 2005
33, 34, 35) The Expanding Power of a Recess Appointment, National Public Radio,
npr.org/templates/story/story.php?storyId=4781459
36, 37, 38) Mott, Jonathan What is an Executive Order? ThisNation
thisnation.com/question/040
39) US History Encyclopedia: Executive Orders, Answers.com,
answers.com/topic/executive-order-1
39, 40) Executive Order (United States), Wikipedia
41, 42) Presidents have long history of executive prerogative, Lancaster Eagle Gazette, 12/13/2009
lancastereaglegazette.com/article/20091213/OPINION
43, 44) The Legal Significance of Presidential Signing Statements, Justice.gov
justice.gov/olc/signing
45) Voting in Early America, Foundation, Spring 2007
history.org/Foundation/journal/Spring07/elections
Nancy Salvato is the President and Director of Education and
the Constitutional Literacy Program for Basics Project, a non-
profit, non-partisan 501 (C) (3) research and educational
project whose mission is to re-introduce the American public
to the basic elements of our constitutional heritage while
providing non-partisan, fact-based information on relevant
socio-political issues important to our country, specifically
the threats of aggressive Islamofascism and the American
Fifth Column. She serves as a Senior Editor for The New Media
Journal. She is also a staff writer, for the New Media
Alliance, Inc., a non-profit (501c3) coalition of writers and
grass-roots media outlets.
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