Posted on 07/18/2008 2:06:34 PM PDT by Congressman Billybob
(Fifth in a series of ten. For other articles in this series, click on View all articles by John Armor on ChronWatch -- and "Blogs by this author.")
The powers of the president were designed to be sufficient to lead the nation, and insufficient to dominate the nation. In the hands of a self-restrained leader such as the first president, George Washington, the extent of powers of the chief executive were not a potential problem.
In the 20th century, both books and articles have decried the "imperial presidency." The thesis is that recent presidents have successfully claimed more power than the Constitution permits. Part of the increase is natural. The federal government has radically grown especially since the Great Depression.
Since all major officials are appointed by the president, subject to consent by the Senate, every growth in the size of the federal government is also, necessarily, an increase in presidential power. But the other two areas of growth of presidential power--foreign relations and executive orders--are seemingly within the control of the president himself. Things are not always what they seem.
The Constitution deliberately gives only to Congress the power to declare war. In recent decades, presidents have committed acts of war against various nations without any declaration of war by Congress. Most presidents have, in taking such steps, referred to the War Powers Act, passed in 1973.
Under that act, a president can send troops into battle, or into situations where hostilities are imminent, only for 60 days, absent a declaration of war or a specific mandate from Congress. The president has a possibility of one, 30-day extension. When passed, shortly after the Vietnam War, the act was hailed as a "restraint" on the powers of the president to move troops anywhere in the world on his own initiative, as commander in chief.
But in fact, the War Powers Act allows the president of the United States to commit the nation’s military to acts of war against other nations without any specific authority from Congress. And once war is begun, chauvinism can cause the people to commit to continue the war. This was exactly the evil that the framers sought to prevent in the War Clause of the Constitution, an executive decision to begin a war without any advance control by the people’s elected representatives.
No one has ever caused any court to rule on the constitutionality of the War Powers Act in its 35 years of existence. Yet any fair analysis leads to the conclusion that the power to begin a war cannot be delegated from Congress to the president because of a specific prohibition against that. This is a growth of presidential power that Congress turned over voluntarily. It was not taken by force by the president.
Executive orders are another matter. Such orders were known by, and used by, presidents going back to George Washington, but they have grown in subjects and intricacy in the 20th century. Two very important Supreme Court cases arose from examination of specific executive orders.
The first is Korematsu, during World War II. President Roosevelt issued an EO requiring that all residents of the United States west of the Mississippi who had at least one Japanese grandparent, would be rounded up and put in detention camps. To its gross discredit, the Supreme Court approved that order, over a sharp dissent. Forty years later, Mr. Korematsu obtained a federal court order throwing out his conviction as unconstitutionally obtained.
The second EO case was Youngstown Sheet and Tube, during the Korean War. The steel workers went on strike. President Truman issued an EO seizing the steel mills. The Supreme Court struck down the order as beyond the president’s war powers. (Congress promptly passed a law, doing what Truman had attempted.)
The use of EOs to create legal requirements without congressional approval is a serious temptation for all presidents. Paul Begala, advisor to President Clinton, put the temptation in clearest possible language: "Stroke of a pen. Law of the land. Kinda cool."
The power to write laws necessarily involves the danger of losing the next election in one’s home district. Only legislators at the state level, and members of Congress at the federal level, are given that power. Presidents (and governors) are violating the separation of powers when they seize that power.
Lastly, there is a cure for such usurpation. Government can do nothing absent congressional authority to spend money on that action. EOs, like acts of war, can be defunded, unless Congress is unable or unwilling to muster the courage to act. Yes, presidents have seized powers that they should not possess. But congresses have allowed them to do that.
[Next week: Article III, The Courts.]
John / Billybob
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John, your entire series thus far has been very enlightening and informative. Thanks.
John / Billybob
I'd be interested in knowing your thoughts on their use for high schoolers.
Maybe they'd make a great homeschool package. You could have a great deal of influence that way I think.
If this turned out to be highly useful to the home-schooling community, that could affect whether it gets published. Let me know.
Five of these are now available on FreeRepublic. Within two weeks, the other five will be up. The only change from these to the final version is that I prefer to capitalize the words "Court, Congress, President, Framer" as a matter of respect. My editor at ChronWatch thinks otherwise.
John / Billybob
John / Billybob
Your articles, along with some discussions I've saved from FR (especially on the real life applications of the bill of rights) I think would be great.
Homeschoolers are often caught between using public school materials, which often don't have the POV or the depth we are looking for; and too scholarly of materials, which are too much for a more casual review.
I'll take this to my next parent's meeting and see what people think.
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