The Controversial Broad Executive Powers

CONTENTS

INTRODUCTION

HISTORIC LITERATURE

REASONS BEHIND THE CONTINUOUSLY INCREASING PRESIDENTIAL POWERS
I-The Presidency and the Congress:
II- The Presidency and Foreign Affairs:
III- The Presidency and the Military:
IV- The Presidency and the Media:
V- The Presidency and the Government Agencies:

ASSESSMENT OF THE FINDINGS:
I- The Presidency and the Department of Justice:
II- The Presidency and the Congress:

CONCLUSION

WORKS CITED

Karim Saba

IDS804 VC S2013: 2013S IDS804 VC Information Literacy

13 May 2013

The Controversial Broad Executive Powers and the Role of Congress and Department of Justice

INTRODUCTION

The practices and powers of the President of the United States have received increasing attention since the catastrophic events of September 11. Most often the current political debate focuses on unilateral actions taken by the Office of the President, especially in the fields of counter-terrorism and the economic stimuli. This paper argues that there are external factors pushing the presidential powers to expand. Those factors include, but are not limited to, the nature of the international politics, the media and the state of emergency. However, the main factors are Congress that is not exercising its full powers of checks and balances; and an Attorney General who does not counsel the President when the President exceeds the powers vested into his position.

The aim of this paper is to enrich the debate by providing some insights into this dilemma through the analysis of selected findings about the reasons for the continuously increasing presidential powers, followed by assessing those findings then drawing out a conclusion. Through this paper, you will find answers for questions central in the debate such as what is the scope of the executive power? Must the President respect the limits originally and literally imposed in the Constitution? If so, what happens in case of a catastrophic crisis? Does the President have the right to exceed his constitutional powers in order to address the crisis?

The paper also shows what the implications of absence of effective checks and balances of the Congress are, and what happens when the Attorney General and the Department of Justice do not counsel the President as required, or at least expected.

It is worth mentioning that the dilemma about the presidential powers is not something newly introduced to the political arena. Throughout the time, hundreds of historian and researchers wrote thousands of papers about the American presidential power that has always been an area of interest into the field of social sciences for so long. The topic of unilateral actions is not the only topic that has received an increasing attention from researchers and media. In fact, one of the main topics of concern has always been the way used by each president in managing the power through his position since George Washington. The point that may sound astonishing is that throughout more than two hundred years of debates neither politicians, nor historians have reached a consensus about the proper way of governing. There is always a question of the scope of the presidential power.

HISTORIC LITERATURE

The debate over the powers that shall be vested in the President of the United States is as old as the Constitution itself, stretching from the first conference of the founders to the pages of modern law reviews (Prakash 329). When the Founders gathered themselves to sit and discuss how to formulate the Constitution, they did not have any earlier version to copy from. If in considering the nature of legislative power, it is, but natural that they should recur to the British experience from whence their very conception of legislative authority was derived; the same was not true when they directed their attention to the executive branch. As far as administrative power was concerned, the British example presented itself to the Framers, not as one to emulate, but as one to avoid. The fear of a strong executive power patterned upon the British Crown, prevailed widely in 1787. George III was, if anything, an object of aversion; he remained a bogey to successive generations of American children. "The example of executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evil in the Declaration of Independence leads me to doubt they were creating their new Executive in his image" (Schwartz 1).

Perhaps, that was the initial cause of the debates around the presidential powers. However, the desire for strong presidency to lead, balanced the fear of the delegates. The delegates knew they had to create a kind of effective office of the executive branch. Their mission was to provide national leadership without allowing an opportunity for tyranny (Janda, Berry and Goldman 386). Nevertheless, the main problem they created was that vague sections talking about the powers of the President in Article II of the Constitution. Section 1 of Article II is very clear. It clearly explains who is eligible to become a president¹ and how he or she can be elected² (U.S. Const. art. II, § 1). The Framers had undoubtedly many reasons for the lack of precision in the second article. One explanation was probably the difficulty of providing strong presidential power, yet at the same time reducing it (Janda, Berry and Goldman 388). Moreover, the framers of the Constitution had no model - there was no previous President - on which to base the roles described for the office. And ironically, the powers described for the presidency may have been more accurate if they had less confidence in George Washington, the obvious choice for first president.

Nonetheless, the debate had continued over time and from President to another. People managed to enrich their debate by comparing the actions of the existing President to the actions of his predecessors. As an illustration, the debate over President Thomas Jefferson's definition of executive power was something exceptional. Jefferson is traditionally viewed as one of the Nation's greatest Presidents. Even so, some political researchers and historians, such as Professor John Yoo, evaluated Jefferson's presidency as one of a kind that is associated with a narrow conception of executive power both at home and abroad (Moran and Strawn 232). Jefferson exercised broad executive powers. Domestically, Jefferson was the first to start the spoils system by filling the executive positions with political patrons; furthermore, he justified the duty of the president to interpret the constitutionality of acts of Congress, and called for a sweeping executive privilege in clashes with the courts (Yoo 426). In Foreign Affairs, Jefferson Practiced "Lockean prerogative"³ to act quickly and unilaterally in moments of national crisis or an opportunity. In fact, such an action had its own merits because Jefferson’s administration’s operational procedures eventually led to Jefferson's greatest achievement: Louisiana Purchase. On the other hand, the greatest failure of Jefferson's administration was the European Embargo⁴ (Kennedy, Chen and Bailey 241). Many historians agree that unilateral action was the main reason behind the success of the Louisiana Purchase, while the embargo was the result of collaboration of the Congress and the President (Yoo 430-452).

As mentioned earlier, all the parties agree that despite the importance of the office of the President, the constitutional description of the President’s duties, which are set forth in Article II of the constitution, is vague and succinct. (Janda, Berry and Goldman 387). And that frequent conflict within the limits of presidential power is a normal result this uncertainty has led to. However, more surprisingly, many of the differences between both those who favor and those who oppose the broad concepts of presidential power remain unresolved. Because both parties have always had their own hidden agendas, even though both have good reason to unify the discussion, so that the common points formulate a concrete agreement, while differences that are sometimes mysterious to become more pronounced and apparent (Prakash 328). One of the major controversies becomes apparent when you ask a group of conservatives how they justify the presidential unilateral actions. The majority of conservatives rely on a hypothesis that the President lives in a real world, not in a world of idealism and originalism. And that "the Constitution" the President takes on an oath to "protect and defend" is not the Constitution as it was originally understood (Ramsey 354). Consequently, talking about the President following the literal meanings of the constitution is no longer possible for a world where a terrorist attack occurs in seconds. Besides, there is always someone or some incident in our history that would allow the conservatives to rely on. For example, President Lincoln did exceed his constitutional powers during the Civil War. He did so through a transparent and temporary action (Lincoln 594).⁵ Accordingly, there is no harm in exceeding the executive powers if the process is crystal clear and impermanent. But now let’s compare this hypothesis to recent history. Although the enhanced interrogation technique, for instance, was not intended to be a permanent investigation approach, some people might say that it was important and required for the national security of the country. Dick Cheney is among those who claim that it was the only available way during that time (Cheney).⁶ Even so, the controversy is that those who were in favor of the torture program, and usually relate it to what President Lincoln did during the

Civil War, they always neglect to talk on the issue of transparency. The Enhanced Interrogation Program was not apparent to public back then. The Congress did not know immediately about it. And the Attorney General did not disapprove of it. In fact, it was years after those incidents happened when the reports on the program started to get declassified (CNN). Another example of unprecedented expansions of presidential powers was that of President Nixon. Richard Nixon showed how the executive branch can use the presidential power to force against liberals when the executive branch adopted an authority to implement major cuts to the budget and to achieve its military objectives (Zelizer 499). Afterwards during the presidencies of Gerald Ford and Jimmy Carter, Congress tried to restrict the unconstitutional powers and violations of the executive branch, which unquestionably angered many conservatives. After that when President Ronald Reagan came into the office, like Nixon, he believed in the feasibility of the presidency to achieve the objectives of the conservatives; and he learned that Congress would pose major obstacles to his conservative agenda, even when Republicans controlled the Senate between 1980 and 1986.

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¹ U.S. Const. art. II, § 1“No person except a natural born citizen or a citizen of the United States, at the time of the adoption of this constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years as a resident within the United States.”

² U.S. Const. art. II, § 1 “The executive power shall be vested in a President of the United States of America. He

shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term.”

³ Lockean prerogative is a legal doctrine that originated in England, giving the sovereign the right to operate in a supra-legal manner if he determined it was in the supreme national interest, typically in the common defense. (http://en.citizendium.org/wiki/Prerogative_power)

⁴ The European Embargo Act of 1807 was a general embargo enacted by the United States Congress against Great Britain and France during the Napoleonic Wars. (Kennedy, Chen and Bailey 240)

⁵ The speech of President Lincoln to the Congress on July 4, 1861, in a message to Congress in Special Session, President Lincoln explained the reasons for him to exceed his constitutional powers saying “ The whole of the laws which were required to be faithfully executed were being resisted, and failing of execution in nearly one third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen ’ s liberty, that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly: are all the laws, but one to go unexecuted, and the Government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken if the government should be overthrown, when it was believed that disregarding the single law would tend to preserve it? ”

⁶ Vice President Dick Cheney in a speech delivered to the American Enterprise Institute, Washington, D.C.; May 21st. 2009, named Protecting This Country “The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do. The intelligence officers who questioned the terrorists can be proud of their work and proud of the results because they prevented the violent death of thousands, if not hundreds of thousands, of innocent people.”