Of course, it is not only Congress which has had its powers revised. As Hazlitt (1942) noted,
An American President, it is now generally agreed, has too many powers, some of them grossly excessive. He has them principally because the federal government itself has assumed excessive powers, and because Congress, unable or unwilling to issue thousands of regulations and make a million detailed decisions, delegates its powers to the President to set up hundreds of regulatory agencies and appoint the bureaucrats to fill them. [1]The new powers of the President are dramatically revealed when we contrast the 1787 Constitution with the Empirical Constitution. Article Two, Section Two, Clause Two of the 1787 Constitution reads as follows:
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; 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.But Article Two, Section Two, Clause Two of the Empirical Constitution is an animal of an entirely different stripe:
He shall have the power, by and with the advice and consent, or consent with reservations and amendments, of two-thirds of a quorum present in the Senate, to make bilateral or multilateral international treaties negotiated by him on proper subjects not violative of fundamental individual rights granted herein, but other Constitutional and States rights may be affected in the national interest if no feasible alternative solution is available. He may optionally effect treaty aims by entering into executive agreements without the Senate's consent, exercising his own power over foreign affairs and as Commander-in-Chief, or seek subsequent Senate ratification thereof, thus turning them into treaties, but shall in all cases promptly advise the Congress of the contents of such agreements. Non-selfexecuting treaties and executive agreements requiring implementation by legislation shall be effectuated at the discretion of the Congress. Claims of foreign sovereigns, individuals or other entities arising under the terms of treaties and executive agreements shall be resolved, as their nature require, by the President, the courts, or, where legislative implementation or funds are required, by the Congress. The President shall exercise broad powers under treaties with the Indian Nations, and to enter into executive agreements with them over the disposition of public lands. Treaties and executive agreements shall terminate by their terms, renegotiation or denunciation by the President, or alteration or repeal by the Congress, all subject to judicial review concerning compliance with the Law of Nations, but the Congress shall not be compelled to legislate in order to give effect, where required, to any resulting judicial determination. The President shall nominate, and by and with the advice and consent of a majority of a quorum in the Senate, shall appoint ambassadors, other public ministers and consuls, justices of the Supreme Court, secretaries, undersecretaries and assistant secretaries of executive departments, and heads of major quasi-departmental offices established within the Executive Branch. He shall appoint without such consent, or delegate the power to appoint, members of his staff, and those of his executive office, his personal agents, including his diplomatic representatives abroad, and all members of the civil service in the Executive and Judicial Branches, consisting of inferior officers subordinate to heads of executive departments and offices, chiefs of federal courts, and judges of federal courts inferior to the Supreme Court, but the Congress may by law modify this power, and assign parts or all of it to the courts of law, or the heads of executive departments as well. All his non-judicial appointees, including those approved by the Senate, or whose dismissal is expressly constrained by it, may be removed by the President at will, but non-judicial members of the civil service can only be dismissed for good cause, while judicial appointees must be terminated by impeachment. . . . In matters concerning presidential communications relating to the exercise of executive authority, an incumbent President shall not be compelled by the co-equal Branches of the National Government to testify before them or to reveal the contents of his or his executive office's papers and other documents, and this privilege of executive confidentiality extends to his subordinates, if requested by the President, who may be required to testify about their conversations and all other forms of communication with the President, and about presidential papers and other documents, but, except in vital national security, diplomatic and military matters, the presumption in favor of protecting the privilege may challenged, and, considered in camera in court, be rebutted, in order to obtain essential evidence in a criminal investigation or trial. An incumbent or former President shall be immune from tort claims for damages arising from his exercise of executive powers.[2]The Judicial Branch, needless to say, has also greatly expanded its own powers. Article Three, Section Two, Clause One, originally twelve lines, occupies three pages in Ladanyi's book, and is too long to reprint here. But some of the flavor of the changes to that provision may be seen in the changes to the Preamble found in the Empirical Constitution:
We the Justices of the Supreme Court of the United States, in order to maintain and strengthen the Union, redraw the jurisdictional lines among the legislative, executive and judicial Branches of the National Government, redefine the Rights of the States, determine the areas of final authority between various State constitutions and this Constitution, establish greater, more uniform and equal Justice, preserve and assure the maintenance of Domestic Tranquility, facilitate the Common Defense, promote and expand the General Welfare, broaden and secure the Blessings of Liberty, and provide for affirmative judicial action to secure and assist in the implementation of these Aims, and in line with the present needs, necessities, hopes and desires of the People, including citizens and all other persons within the United States and its Territories, living in drastically changed material circumstances, possessed of altered and more varied ideological, social, political and cultural values, and their Union being part of a vastly different world, do ordain that the 1787 Constitution of the United States and Amendments thereto, and as implemented by appropriate Congressional legislation and the proper exercise of Presidential powers, be interpreted as reflected in the Articles that follow, and that such interpretations be recognized as the Supreme Law of the Land and be applied with the same authority, force and effect as the 1787 Constitution, as amended, has come to have in the years since its adoption.[3]Amend the Constitution? What Constitution? Which Constitution? As Tugwell (1976) stated, "The pretense that a body of agreed higher law exists is a kind of national conspiracy, maintained because of need. A Constitution is necessary to the American system. That it no longer exists is an intolerable thought."[4]
END PART 17: TO BE CONTINUED
FOOTNOTES[1] A New Constitution Now, 2nd Edition, p. 26.
[2] The 1987 Constitution, pp. 35-37.
[3] The 1987 Constitution, pp. 4-5 (word "we" omitted before "do ordain").
[4] The Compromising of the Constitution, p. 108.
