House Debating the Constitutionality of Presidential Termination of Treaties

CSPAN ^ | 6-6-2002 | Huck

[inquest]

I checked out the post you linked to, and from there, I checked out the link to that Federalist Society article. One quote stands out: "One element of 'executing' a law (or treaty) is deciding when it does not apply, or no longer applies, on the basis of its own terms." Sorry, but that is total nonsense. Executing the law simply means making sure it's followed, not deciding whether or not it should be followed, which is a legislative decision only.

And in order to establish conclusively that the President has the power to fire officers without the consent of the Senate, I would think it would be necessary to explain exactly why Hamilton, Madison, Jay, and the early supreme court justices were wrong on the subject, something that article doesn't even attempt to do.

[dvwjr]

I checked out the post you linked to, and from there, I checked out the link to that Federalist Society article. One quote stands out: "One element of 'executing' a law (or treaty) is deciding when it does not apply, or no longer applies, on the basis of its own terms." Sorry, but that is total nonsense. Executing the law simply means making sure it's followed, not deciding whether or not it should be followed, which is a legislative decision only.

In the case of the ABM Treaty, the power to withdraw from the same is not given to the Senate to determine. That is an executive function. It does call for judgement on the part of the executive, the same as laws passed by Congress which require the executive to render a judgement so as to be able to enable some portion of an enacted law. If the Senate wanted to make sure that the Treaty could never be revoked by any President, then they could have forced that to be written into any such Treaty during the advise and consent process.

And in order to establish conclusively that the President has the power to fire officers without the consent of the Senate, I would think it would be necessary to explain exactly why Hamilton, Madison, Jay, and the early supreme court justices were wrong on the subject, something that article doesn't even attempt to do

Now as to firing officers without the consent of the Senate, I think that the Myers vs. United States- 1926 case put to rest the question that the Founders never enumerated. If the Senate always had the power, then why did it pass the Tenure of Office Act of 1867 in the first place? They were grabbing for power they were not given.

[inquest]

It does call for judgement on the part of the executive, the same as laws passed by Congress which require the executive to render a judgement so as to be able to enable some portion of an enacted law.

Interesting you should bring this up. This practice is itself of questionable constitutionality, as it seems to delegate legislative power to the executive (which SCOTUS said could not be done - remember that case regarding the line-item veto?).

If the Senate always had the power [to approve firing of executive officers], then why did it pass the Tenure of Office Act of 1867 in the first place? They were grabbing for power they were not given.

So let me see if I understand correctly: It's OK for Congress to give the President power that he was never given by the Constitution, but it's not OK for it to give itself power that it was never given? Does all unallocated power default to the President?