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A case Against the Executive Branch of the United States of America

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A core tenant of our nation is that no one not even the president is above the law. The Take Care Clause commands that a president shall "take Care that the Laws be faithfully executed," and the president is required to take an oath to "faithfully execute the Office of President" to assure that happens. But over the centuries, presidential power expansion and abuse of power have been growing. It's not a recent trend appearing with Trump, and is not subject to only one party.

Abraham Lincoln's suspension of habeas corpus, FDR's "internment" of hundreds of thousands of ethnic Japanese, Andrew Jackson's removal of the Cherokees from their homeland in the southern Appalachians to Oklahoma, The often overlooked intervention of Theodore Roosevelt in Colombia, Trump Inciting an insurrection (just to give a few examples)"

The unitary executive theory is a theory of United States constitutional law which the President possesses the power to control the entire executive branch. The doctrine is rooted in Article Two of the United States Constitution, which vests "the executive power" of the United States in the President. The Vesting Clause of Article II provides, "The executive Power [of the United States] shall be vested in a President of the United States of America." Supporters of the unitary executive theory argue that this language, along with the Take Care Clause ("The President shall take care that the laws be faithfully executed ..."), creates a "hierarchical, unified executive department under the direct control of the President.". The general principle that the President controls the entire executive branch was originally innocuous, but extreme forms of the theory have since developed. Former White House Counsel John Dean explains: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters." The phrase "unitary executive" was discussed as early as the Philadelphia Convention in 1787, referring mainly to having a single individual fill the office of President, as proposed in the Virginia Plan. The alternative was to have several executives or an executive council, as proposed in the New Jersey Plan and as promoted by Elbridge Gerry, Edmund Randolph, and George Mason.

According to Hamilton, the unenumerated executive powers that are vested solely in the President "flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government."

Those other parts of the Constitution include the extensive powers granted to Congress. Article I of the Constitution gives Congress the exclusive power to make laws, which the President then must execute, provided that those laws are constitutional. Article I, Section 8, clause 18 of the Constitution known as the Necessary and Proper Clause grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof". The Constitution also grants Congress power "To make Rules for the Government and Regulation of the land and naval Forces." The theory of the unitary executive can only be legitimate insofar as it allows Congress to wield its constitutional powers while ensuring that the President can do the same.

Loyola Law School professors Karl Manheim and Allan Ides write that "the separation among the branches is not and never was intended to be airtight," and they say the President's veto power is an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power being exercised by the executive branch, as necessary elements of the administrative state, but they contend that ultimately all administrative power belongs to Congress rather than the President, and the only true "executive" powers are those explicitly given in the Constitution..

David Barron (a federal judge) and Marty Lederman have also criticized the strong version of the unitary executive theory. While they acknowledge that there is a case for unitary executive within the armed forces, they argue that the Constitution does not provide for a unitary executive outside the military context, and that the Commander in Chief Clause would be superfluous if the same kind of unitary authority resulted from the general constitutional provision vesting executive power in the President.

Since Watergate, there has been a consensus that presidents may not use their official powers to interfere in the administration of justice to protect themselves, place themselves above the law, or target their political opponents. The Constitution in two places requires the president to act in good faith to enforce the laws. It's long overdue that it is enforced.

"The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period."" Thomas Jefferson, Democracy in America

The executive branch has undergone drastic changes over the years, making it vastly different from what it was under George Washington. Today's executive branch is much larger, more complex, and more powerful than it was when the United States was founded, let alone, intended.

When the founders were initially deciding what powers and responsibilities the executive branch would have, they were influenced by their experience with the British government under King George III. Having seen firsthand the king and other European leaders abuse their powers, the writers of the Constitution wanted strict limits on the power that the president would have. At the same time, they wanted to give the president power to conduct foreign policy and to run the federal government without being hampered by the squabbling of legislators from individual states. The framers wanted to design an executive office that would provide effective and coherent leadership but never become a tyranny. Article II of the Constitution. The specific powers given to the president are few, and the language that is used to describe them is often brief and vague. Specifically, the president has the authority to be commander in chief of the armed forces; to grant pardons; to make treaties; and to appoint ambassadors, Supreme Court justices, and other government officers. As well as the president is responsible for making sure "that the Laws be faithfully executed" (§ 3), though the Framers did not specify how the president was to accomplish this goal. The Framers made no specific provisions for a staff that would assist the president; the Constitution says only that the president may "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices" (§ 2).To make sure the president could not become too powerful, the Framers made many powers dependent upon the will of Congress. For example, the president is given the power to make treaties with foreign countries, but those treaties must be approved by the Senate by a two-thirds majority. The Framers did not divide powers among the branches, they required the separate branches to share power, resulting in a complex system of checks and balances that prevents any one branch from gaining power over the others.

Alexander Hamilton, writing as Publius in The Federalist Papers, argued that "[i]t has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government."

The real growth is in the 20th and now the 21st century. You have the great expansiveness of the size of government. Most of that's in the executive branch, and so the president has more means, many more staff, many more people to help him carry out his preferences, not the will of congress or the people.

And you also have, over time, the delegation of great amounts of power to the president by Congress, including things that are specifically delegated to the Congress by the Constitution, trade power, for example.

In other areas, presidents have sort of pushed hard to try to take over the war power, for example. And Congress on the whole has been pretty lax about that (The U.S. has not declared war since WW2, yet we have been in constant conflict in areas that has nothing to do with WW2).

For the last quarter century, the checks and balances of American government have been usurped by the merger of two powerful currents. One is the gathering concentration of power in the hands of the federal executive. Both Democratic and Republican, although at different rates of acceleration have been guilty. The second has been the campaign of the right wing of the Republican Party since 1981 to steer the national government toward the fulfillment of a conservative social, economic, and foreign policy agenda. Together, the growing executive power and the campaign for partisan dominance have produced aggressive presidents largely immune to legislative control or judicial review. This constitutional storm has put our democratic republic at risk, upending many of the practices that have helped to sustain the checks and balances in our national government, at least since the end of World War II.

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Franz has been studying political science for almost 30 years and is very passionate about his nation. He bends no knee to party or personality (which means he infuriates both sides of the aisle). He is blunt, to the point, and will call out (more...)
 

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