Try Reading the Constitution, Part III

We’re doing a series celebrating the US Constitution. See Part I and Part II.

The premise is that you might have had the idea that the Constitution is hard to understand, too much legalistic language as well as too many archaic words. I assert that it’s actually pretty accessible and together maybe we ought to give it another try. So you might want to get out your pocket Constitution to follow along.

Today, we’ll continue the Constitution reading exercise with Article II, pertaining to the executive branch. After the four sections of this article, we’ll cover some problems we’re having with this article.

 

Article II

Article II of the Constitution lays out the powers of the US President, the chief executive officer (CEO) of the United States.

He does not make laws—although he can use his influence to persuade Congress to make certain laws.

He does not make a budget—although he can use his influence to persuade Congress to budget according to his priorities.

Section 1 describes how the President, together with the Vice President, shall be elected. This is where the Electoral College instructions and rules are laid out, which were changed with the Twelfth Amendment in 1804. Then come the requirements to be the president:

·         Must be a natural born citizen.

·         Must be 35 years of age by the time of the election.

·         Must have resided within the United States for 14 years.

That last one means, if a person grew up as a citizen, but lived with parents outside the US, or additionally worked outside the US as an adult, and hasn’t accumulated 14 years living in the US, they can’t run for the office of president. The founders were trying to prevent someone whose allegiance was, either secretly or openly, to another country from using the technicality of citizenship to try to gain power in our country.

Then come the rules for removal from office—for impeachment and conviction of crime, or for death, resignation, or inability (possibly temporary until the disability is resolved). There’s more about this in the 25^th Amendment, passed in 1967.

Next comes information about the president’s compensation. Then there’s the requirement of taking an oath of office, which is:

“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.”

Section 2 gets into what the President’s duties will include:

·         Be Commander in Chief of the US military and the militia of the several states (the state national guard).

·         Grant reprieves and pardons for offenses against the US (except in cases of impeachment).

·         Make treaties, with advice and consent (2/3 of those present) of the Senate.

·         Appoint ambassadors and other public ministers and consuls, with advice and consent of the Senate.

·         Appoint Supreme Court justices and other officers of the US, with advice and consent of the Senate.

·         Fill vacancies that may happen during the recess of the Senate, which expire at the end of the next Senate session.

Section 3 requires the President to report to Congress concerning the State of the Union. While this can be done in writing or some other way, it has become the traditional State of the Union Address, usually in the first quarter of the year.

And there’s this important statement:

“He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

He’s going to see to it that the laws are carried out. And he’s going to delegate powers to—that is, commission—the officers to do their assigned work in seeing that the laws are carried out.

Section 4 is one more word about impeachment, which applies to the President, Vice President, and all civil Officers of the United States—which includes federal judges and other appointees. Impeachment is the prosecution part, done by the House of Representatives. The trial on the offense(s) happens in the Senate, where the officer can be removed from office if convicted. Impeachable crimes include “Treason, Bribery, or other high Crimes and Misdemeanors.” That term “high Crimes and Misdemeanors” has been the subject of some debate, although it was clearly understood by the founders. The phrase was intended to include large crimes against the state that might not be labeled as either treason or bribery.

We covered this in more detail last December, when history on this subject was taking place. You can read that here. But, in short, picture a diagram that has a large circle encompassing all serious crimes against the state (nation), inside of which are treason and bribery. So anything that isn’t treason or bribery is included as “high Crimes and Misdemeanors.”

Problems with Executive Power

The Regulatory State

There has been a serious change in the balance of power in recent years. The founders assumed that each branch of power would jealously guard its own power, thus preventing any encroachment by the other branches.

But we’ve had a sort of new, extra-constitutional (that is, beyond the Constitution) branch we might call the regulatory state.

The balance of power has shifted, because laws are being written that cede power from the legislative branch to the executive branch. They delegate sweeping powers to these regulatory agencies to determine the laws, write them as regulations, and enforce them. In addition, they often have power to judge and punish as well.

So many things are wrong with rule by regulatory agency. Its rulers are unelected. Some are experts in particular fields, but mostly they are bureaucrats, administrators, who may not be in touch with the realities of those doing business in that economic sector.

They are granted lawmaking power—the legislative branch’s job—but they’re part of the executive branch. It’s as if the legislative branch said, “You’re smarter than we are; you just do what you think is best. We’re sure you’d never do anything but what is the right decision for everybody.” And then the legislative branch turns their attention to their other assignments, such as doing impeachment investigations.

As we talked about in our post on Article I, legislating is the only main assignment of Congress. In addition, they put out the budget. Although since 2006 they have mainly failed to put out a budget, and have done what is called a “continuing resolution,” which keeps funding everything as it was funded in the previous year’s budget with some set percentage of increase to balance against inflation. In other words, Congress is very busy not legislating or budgeting.

By ceding that power to “the experts,” the legislative branch has greatly increased the power of the executive branch. That hasn’t been a good thing; it has unbalanced the constitutionally designed balance of power. We’ve talked about that in more detail:

·         Regulatory Tyranny, August 26, 2013

·         Red Tape Cutting, May 31, 2018

Executive Orders

There’s another problem with the executive branch: Unconstitutional Executive Orders. This comes under Section 3, where we’re told about the President's duty to faithfully execute the laws and commission officers to do that work.

The purpose of an executive order is to direct the people working under the President concerning how to execute the laws duly enacted by Congress. Executive orders are meant to be procedural. And they must be simply a way to carry out of the laws; they cannot change the laws or create new laws. We have purposely separated powers so that the executive branch does not have lawmaking powers.

The number of executive orders a president gives is not relevant.

For example, If you have a president, say Reagan, who uses executive orders liberally but perhaps not even a single time for any purpose but directing the executive branch in how to keep the law, then you have no executive order problem.

Then, suppose you have another president, say Obama, who less frequently gives executive orders but often as an edict to create law rather than to follow laws set by Congress, then each of those offenses is breaking the law.

Party doesn’t matter. The policy itself—along with its efficacy or intent—doesn’t matter. The color of the president matters not a whit. What matters is the breach of the law.

The President cannot act extralegally. He cannot make law. We do not live in a monarchy, dictatorship, potentate, banana republic, or any other tyranny. We live in a constitutional republic. We have a written law granting only limited enumerated powers to the federal government, so that our God-given natural rights are not infringed.

Can a president act beyond those enumerated powers? Presidents have. But not legally. Presidents have typically gotten away with exertion of power beyond what is granted depending on their popularity.

So the next question is, How do we limit the damage of a president’s acting beyond his authority in direct conflict with Constitutional limits?

The ultimate constitutionally designed response is impeachment. But first there should be other ways, less painful to the nation.

Congress can write legislation to override the executive overreach, so there is no lack of clarity on what the law actually is.

Congress can stonewall the illegal orders. With the power of the purse, which they hold, they can defund anything that relates to executing his orders. They can do targeted defunding—rather than simply refusing to agree to a continuing resolution, for which the shutting down of the government will be blamed on them. It’s easier to target spending in an actual budget, so that’s incentive for Congress to do that basic job.

The Senate could withhold approval of political appointments until the president rescinds his illegal orders. Senator Ted Cruz attempted this back in 2014.

There are also lawsuits. Then-Texas Attorney General (and Governor-elect) Greg Abbott filed a lawsuit in 2014 based on the significant damage to the state caused by the president’s insistence on a porous border.

It may be that courts can suspend the immediate enactment of any illegal order. This usually requires someone with standing (a person, business, or state or local government that has suffered measurable damages) to sue for redress.

Assertion of 10^th Amendment rights by the states could also be a solution.

All of the solutions require political will, which means that many presidents do a political calculation before the intentional overreach.

So, executive orders used as lawmaking continues to be a threat to our constitutional republic.

The question for each executive order isn’t whether the president has the right to give an executive order; he does. The question is whether the order is following the Constitution and merely executing the law as defined by Congress.