Constitutional Approach
The Founding Era – problems faced by the Founders. Fear of
central power, majority tyranny. Solutions to prevent tyranny.
-- system of checks and balances, separation of powers within
and across levels of government
-- indirect elections (Senate and President)
-- varying terms
-- extended Republic – vast size of the nation
-- power derived from the Constitution
Exclusive powers
Executive Powers – relatively limited when compared to
Congress. Exclusive powers:
Veto – question
whether or not to even grant a veto power to the president. To be used to correct Congressional errors,
rather than political reasons.
Appointment
and removal powers – early debates over the nature of removal power were key in establishing the understanding of presidential power.
Diplomatic
power – combination of exclusive and shared power
Pardons –
also viewed as a more limited power: intended to help put down a rebellion.
Shared Powers
War powers
– Founders: serious role
for Congress. But
changed from “make war” to “declare war.” Historical evolution of
power. Debate today over NSA spying and the
authorization of use of force by Congress. Enemy combatants (Hamdi v. Rumsfeld, 2004)
Guantanomo (Rasul v.
Bush). However
the power to suspend habeas corpus for foreigners was reinstated by Congress
last year.
Lawmaking and administration – some explicitly mentioned
shared powers, but then a great deal read into the silences of the
Constitution.
Implied Powers
lDoes the President have powers
not specifically mentioned in the Constitution?
lMcCulloch v.
lSupreme Court in 1890 (In
re Neagle), more specifically in the context of
executive power.
–case involved a presidentially
appointed federal marshall who was protecting a judge
against threats. He shot and killed an
assailant, and was charged with murder
–court ruled that president had an implicit power to take action necessary to carry out executive functions.
Implied Powers,
continued
lConstitution
is silent on question of whether president can keep information secret from
Congress and the public
lSpecifically
allows Congress to keep its records secret, requiring publication “excepting
such parts as may in their judgment require secrecy”
lSupreme court: “in the area of basic national defense, the frequent
need for absolute secrecy is, of course, self evident.”
lImplied
Powers -- also a source of claim of power for domestic spying.
Prerogative powers
Prerogative Powers – John Locke. Going past specific grants
of power in the Constitution.
Abraham
Lincoln, “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. . . . 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?”
Application to current debates over
presidential power and the war on terrorism.
Use of prerogative power. Richard Pious: frontlash,
backlash, overshoot-and-collapse.
Criticism of
Prerogative Power
lInconsistent with concept of
limited government.
lToo broad a grant of power to
the President.
lVery difficult to specify
rules that distinguish valid vs. invalid cases.
Does the president simply get to define when his actions are in the
nation’s interests?
lMost of the time, we simply
finesse the question.
Other ways of thinking about the Constitution and the
presidency
Delegated Powers:
Congress cannot implement laws, delegates to the bureaucracy. Other legislative functions also
delegated: “fast track” provisions on
trade treaties.
The “National Security Constitution” –
Harold Koh.
The need for balance between the president and
Congress in making national security policy.
The “Two Constitutional Presidencies” (Tulis). First power from the Constitution, second from the people.
Presidential perspectives
William Howard Taft – the strict construction presidency.
Teddy Roosevelt, the stewardship presidency.
Abraham Lincoln and the prerogative
presidency.