The Enumerated Powers of Government – Part 2

In part 1 of this series, I addressed Article I of the Constitution and compared some instances of what the enumerated powers of the legislature are and how they have been exceeded.  Today we take a look at Article II, and how things have changed over the years.

Progressives always say the Constitution should be fluid, and able to change with the times. The framers believed that, as well, however, they included a method by which that can happen and maintain the document’s integrity.

However, when there’s a contract and one party just makes changes as they go, day to day, is it still actually a contract?

Article II, Section 2 US Constitution states:

“The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he 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, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. 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. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Article II, Section 2 of the U.S. Constitution came out from under the thumb of King George.  The framers were hesitant to give a president anything similar the power of a king.  Remember, this Constitution was an experiment and had never been done before. These men accomplished what seemed to be an impossible feat-  throw off a ruling nation, and then form a government whereby the citizens were self governed.

Even the pure democracy of Greece had a strong leadership figure. The president was never to have the power of a king or dictator who would rule by edict.  Much is made of our current president, and his “phone and pen,” however, he certainly is not the first to exceed his limited powers. It is important to make a distinction between the president’s oath of office and other elected officials.  All elected officials take an oath to defend and protect the Constitution against all enemies, both foreign and domestic.

The president’s oath states: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”  By the oaths taken, Congress is to only pass laws that are constitutional, and the president is to faithfully execute those laws. A president would also have the added responsibility to veto an unconstitutional law, a true check and balance.

Now let’s take a look at some examples of presidents and their failure to follow their oath and limits on powers.  Ask random people on the street who the greatest president is, and  Abraham Lincoln will often be the first choice; in fact, a survey from 2014 published in the Washington Post ranked him number 1. If you look at comments on Lincoln’s presidency, you will see comments beginning with, “Much of what he did was considered unconstitutional, but….”  It is true he faced very difficult times, unprecedented issues, and he “preserved the union,” but at what cost?  Did he save the union, or did he poke a hole in the US Constitution that has been taking on water ever since?

 Let’s look at a few specifics. Lincoln ordered the military blockade of Southern ports. He ordered hundreds of Northern newspapers who dared to speak out against him to be shut down – their owners and editors were arrested for disloyalty. He also ordered the arrest of Ohio Congressman Clement Vallandigham for the crime of speaking out against him, and sent Union troops door to door in areas of Maryland, a Union state, to confiscate weapons. There were multiple arrests of Maryland legislators, Boston politicians, and prominent citizens, many of whom were jailed without trial.

Chief Justice of the U.S., Roger Taney, sitting as a judge of the United States Circuit Court for the District of Maryland, ruled that Lincoln had violated the US Constitution when he illegally suspended the Writ of Habeas Corpus.

At what point do we determine violations of oath and office to be “worth it”? Is the cost ever too high?

Franklin D Roosevelt was another highly rated president. This would be the same FDR that signed Executive Order 9066 in February 1942, which authorized the Secretary of War to forcibly deport Americans of Japanese, German and Italian ancestry to prison camps. This Executive Order was even given a blessing by the Supreme Court.

While we value our independence and liberty, we certainly seem quite willing to exchange it for perceived security. When some of his New Deal policies were not accepted, FDR proposed increasing SCOTUS to as many as 15 judges, so he could pack the court with his acolytes. He was able to sway a couple of justices to his way of thinking in time to receive favorable rulings on two HUGE laws, the National Labor Relations Act and the Social Security Act.

 In 1952, President Truman Nationalized the steel mills to prevent a strike, however the mills sued the president to regain control of their facilities. SCOTUS did rule that the president lacked the authority to take this action.

Andrew Jackson famous for his policy of relocating Indian tribes, known as the “Trail of Tears” also took US funds out of the current National Bank, and gave it to private banks on Wall Street in violation to the will of Congress and SCOTUS.

None of this, of course, is taught anymore, and most people are ignorant as to the truth. As I discussed in Part 1, Article I Section I of the Constitution, it is clear that all legislative powers reside in Congress. The Executive Branch has the responsibility to execute the laws passed by Congress.  Executive Orders are NOT legislation; it is an order from the President to enforce laws that congress has not passed. As the Chief Administrative Officer, the President has the authority and responsibility to implement policies and procedures necessary to administer the duties and responsibilities given him by the Constitution.

Policies and procedures passed by Congress are called laws and affect all of the people.  An Executive Order, is a policy or procedure issued by the President that is a regulation that applies only to employees of the Executive Branch of government. An Executive Order must cite the law to which the order pertains, and how the order implements the the law. Any Executive Order that has any effect on individuals that are not government employees is a violation of Article I Section I.

Much has been said regarding the current President and his Executive Orders. It is often pointed out by his loyalists, that he has not written as many EO’s as his predecessors. That may be true, but there are two considerations. One is that you could write a hundred of them done in accordance with the constitution vs one that is an attempt to write or change law.

The second is that often times, President Obama is assumed to have written an EO, when in fact he wrote a “Memo.”  What does this mean? A memo is not in the Constitution, but traditionally, an executive will write a memo to a supervisor as to how he wants him to do or handle something.  It does not change company policy and is typically simply a strong suggestion.

Let’s see how Obama uses this tactic in his administration. Let’s say the President sends a memo to his Attorney General and the Secretary of Homeland Security regarding the handling of illegal immigrants and tells them to ignore the law, to stop detaining and deporting illegal immigrants, and to issue Green Cards to those meeting certain criteria.

Has the President broken a law? Technically, no.

The department heads have two choices: refuse to obey, since the memo goes against the law, and certainly get fired.  Or, follow the memo, break the law, and hope the President “has your back” if things fall apart.

Obviously, this is a concerted effort to thwart the laws and will of Congress.  Any Executive Order that has any effect on individuals that are not government employees, is a violation of Article I Section I.  Congress has options. One: the House has full control of the spending and they can stop the allocation of funds, and the other option is impeachment.

In both cases, however, politicians worry about fallout, re-election, bad press and what will happen to them when the other party is in power and they decide to get even. Very few elected officials take their oath of office with anything more than lip service.

Lord Acton said it best:

“Power is an incredible aphrodisiac. Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”

Obviously, when a President acts in a lawless manner and Congress does nothing to stop him, we have reached a point someplace between tyranny and anarchy. In Part 3 I’ll explain Article III, the Judiciary.

I will leave you with quotes from two of our founders.

John Adams, signer of the Declaration of Independence and our second President said in a speech to the military in 1798, warned his fellow countrymen: “We have no government armed with power capable of contending with human passions unbridled by morality and religion . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

 

Benjamin Rush, another signer of the Declaration of Independence said. “The only foundation for a useful education in a republic is to be aid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments. Without religion, I believe that learning does real mischief to the morals and principles of mankind.”