What are the limits of presidential power?

[YankeeRebel]

Remember your old high school government class? Or maybe that Political Science 101 class you took in college? They taught us the basic structure and functions of the American federal government:

The legislative branch (Congress)-- Writes the laws;
The executive branch (the President)-- Enforces the laws; and
The judical branch (the courts)-- Determines whether laws are being enforced correctly and in accordance with the Constitution.

The teachers told us that this system worked well because it contained "checks and balances" which ensured that no branch would ever be able to consolidate all the power to itself.

That was then, this is now.

The current executive branch is consolidating power in ways that the Founding Fathers could have never imagined. For example, it is re-writing laws that have been passed by Congress. When Senator John McCain's anti-torture law overwhelmingly passed the House and the Senate despite opposition from President Bush, Bush attached a "signing statement" which essentially said that the law and its restrictions did not apply to him. When the existing law said that a warrant was required to engage in domestic surveillance of foreigners, Bush and his administration ignored the law and did it anyways. The current executive branch contends that any law passed by Congress which curtails the president's power is "unconstitutional." Ignoring the role of the Supreme Court, the executive branch has decided that it has the authority to determine what is "constitutional" or legal.

So my question is this: if the president has the power to re-write law at-will, has the power to ignore the law at-will, and has the power to legally interpret the law at-will, then what exactly are the limits to presidential power?

[Feltan]

I think you are painting with too broad a brush.

The issues in contention currently all have to do with laws placing restriction on the President's role as Commander-in-Chief. I do not believe there are disputes about any other laws.

So the issue could also be framed as: what is the limit of the congress to restrict the Commander-in-Chief, especially during a time of ongoing armed conflict?

Regards,
Feltan

[Larrison]

Originally Posted by YankeeRebel

Remember your old high school government class? Or maybe that Political Science 101 class you took in college? They taught us the basic structure and functions of the American federal government:

The legislative branch (Congress)-- Writes the laws;
The executive branch (the President)-- Enforces the laws; and
The judical branch (the courts)-- Determines whether laws are being enforced correctly and in accordance with the Constitution.

Well that's somewhat mistated -- The Legistlative branch writes the laws and passes them through Congress. However the President can veto them. The President sets the budget, and Congress funds the budget. The president acts as "executive", in that he is responsible for executing the laws and in making and setting policies, including all dealing with other countries. But his actions are subject to review and potential veto from Congress (Eg, the President cannot sign secret treaties, or enter into any foreign agreements which are not validated through Congress -- but Congress cannot set policy, negotiate with foreign powers, or direct the President to enter into specific actions outside the US.) Its a bit more "nuanced" than you state it, and there's a couple of hundred years of precedence including a lot of Supreme Court rulings on this.

Originally Posted by YankeeRebel

The teachers told us that this system worked well because it contained "checks and balances" which ensured that no branch would ever be able to consolidate all the power to itself.

That was then, this is now.

The current executive branch is consolidating power in ways that the Founding Fathers could have never imagined. For example, it is re-writing laws that have been passed by Congress. When Senator John McCain's anti-torture law overwhelmingly passed the House and the Senate despite opposition from President Bush, Bush attached a "signing statement" which essentially said that the law and its restrictions did not apply to him. When the existing law said that a warrant was required to engage in domestic surveillance of foreigners, Bush and his administration ignored the law and did it anyways. The current executive branch contends that any law passed by Congress which curtails the president's power is "unconstitutional." Ignoring the role of the Supreme Court, the executive branch has decided that it has the authority to determine what is "constitutional" or legal.

So my question is this: if the president has the power to re-write law at-will, has the power to ignore the law at-will, and has the power to legally interpret the law at-will, then what exactly are the limits to presidential power?

In regards to this -- the Bush statement said the Executive Branch would follow the law ""in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." That's not the same as saying that the law and its restrictions ado not apply to him.

Similarly, its not that "when the existing law said that a warrant was required to engage in domestic surveillance of foreignersrs, Bush and his administration ignored the law and did it anyways." The issues in question have to do with international telecommunications in which someone overseas places a call to the United States. Current case law going back into the 30's and 40's (when it was applied to telephone and radio communications) state that this is a legitimate tactic of the US government, particularly if the message is being carried over the public air waves (such as with radio communications or satellite down links which are receivable over a wide area). I have seen nothing in the claims here that the adminstration did "domestic" wiretapping without a warrant, where the communications were strictly between two points in the United States. That's covered by a different set of laws. And in the cases reported it appears that the Department of Justice reviewed the situation, as well as lawyers in several other organizations within the government, before it went ahead

And the last claim you made that "The current executive branch contends that any law passed by Congress which curtails the president's power is "unconstitutional." Ignoring the role of the Supreme Court, the executive branch has decided that it has the authority to determine what is "constitutional" or legal." Hmm.. could you give me a reference on this? If this is true, it is something of substantial concern. I haven't seen this, other than some flaming on some websites which didn't seem to have much substance. Could you please provide me a reference or analysis where this is laid out?

And lastly, the key power of Congress is that they have the power of the purse. Nothing gets spent in the government unless it is approved by Congress. Even if a budget is passed, there is a very very small limit on what can be moved from a budget line to another -- I recall that folks have been prosecuted in this for less than $100 K. The ultimate limit of Congress is through the budget -- if they don't want something to be done by the Executive branch, they don't pay for this. And this has been controlled down to the level not approving funding for new uniforms which the Congress didn't like on the White House guards.

For example, let's talk about the NSA survelliance of international telecommunications. If Congress really didn't like it, they could cut the funding of it -- immediately -- through a simple floor movement and vote in the Senate and House. Since moving money from one area of the budget to another to continue to pay for it is illegal (and anyone trying to do that is subject to prosecution by the Judical branch), it would shut it down in a matter of days, if not sooner. And I'll note that is "if Congress doesn't like it", not that they have to wait to go through the judical branch.

[esskreemr]

Originally Posted by Feltan

I think you are painting with too broad a brush.

The issues in contention currently all have to do with laws placing restriction on the President's role as Commander-in-Chief. I do not believe there are disputes about any other laws.

So the issue could also be framed as: what is the limit of the congress to restrict the Commander-in-Chief, especially during a time of ongoing armed conflict?

Regards,
Feltan

No, this particular discussion is broad, as started by the thread owner. The idea of 'Unitary Executive Authority' does not exist in the Constitution. It is derived from the Constitution:

Article II

Section 1. The executive power shall be vested in a President of the United States of America.

Those supporting the President's 'Unitary Executive Authority' argue that ALL executive power begins and ends with the President.

Those not supporting the President's 'Unitary Executive Authority' argue that the "The executive power shall be vested in a President of the United States of America" pertains only to the President's control over the Executive branch of the government.

Presidential signing statements don't just affect his powers as Commander-in-Chief. They are notations on laws passed by Congress 'explaining' how the law is to be followed or interpreted. There is no reference to singing statements in the Constitution and very little legal precedence as to the legality of the President attempting to modify laws passed by Congress.

By using his 'Unitary Executive Authority', which does not exist in the Constitution, Bush is stating that he is above the law and seriously breeches the Seperation of Powers.

[Krazyhades]

And then there is the whole thing about Bush illigally, without permission or notification, having wiretapping. On the one extreme I want the gov't to have lots of power to deal with the terrorist problem, but on the other, there is the "They that can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." (Benjamin Franklin). So yah, I'm definitely divided on the president's use of power, and what to think of his illigal actions.

[Inquartata]

Deja vu.....

[Feltan]

Originally Posted by Krazyhades

...his illigal actions.

That is an opinion very much in dispute.

How "illegal" can an action be when the President gets the blessing from the US Attorney General and briefs select members of Congress? I grant you that it may ultimately be determined that the actions are "illegal" in a technical sense (however, I doubt it). But do you really think it is "illegal" from the point-of-view that says the President was/is involved in shennanigans for his personal gain? I just don't see it.

Regards,
Feltan

[Slim]

Originally Posted by Inquartata

Deja vu.....

...all over again.

[epeemike81]

Originally Posted by Feltan

That is an opinion very much in dispute.

How "illegal" can an action be when the President gets the blessing from the US Attorney General and briefs select members of Congress?

And who, pray tell, appointed the Atty Gen.?

So, all a president has to do to make something legal is appoint a yes man as attorney general?

the briefs to select members of congress are of very little relevance, as the information was classified, and they were thus barred from actually speaking out against said program. Additionally, some of those key members of parliament, err, select members of congress have said that those briefings were misleading as to the acts undertaken by the program.

-m

[Philistine]

I think the question in the first post is a good one--what are the limits of Presidential power. Both in the abstract, and as focused on the NSA issue.

A subsidiary question is--who gets to decide, and how should that decision be made? Does the Supreme Court? In what context? Can the President simply say that this law, or that law doesn't apply to me, because it's unconstitutional?

My $.02--pretty clearly, Congress cannot take away a power that is specifically given to the President by the Constitution. OTOH, the President cannot ignore laws made by Congress in areas where it is specifically given power.

The problem (as I see it), is where there is at least arguably concurrent authority given by the Constitution.

In relevant part--the Article I of the Constitution grants the following powers to the President:

"The executive Power shall be vested in a President of the United States of America..... 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."

At the same time, Article II grants Congress:

"The Congress shall have Power To.....To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water....[and] To make Rules for the Government and Regulation of the land and naval Forces."

FWIW--my take on the NSA issue is that Congress' ability to make rules for the Government of the armed forces, is more explicit than, and trumps the Commander-in-Chief powers of the President in the context of determining when and under what circumstances wiretapping of US citizens can take place. Of course, YMMV.

How (if it does) this case gets to the Supreme Court, I don't know--while there are cases pending in lower courts now--I'm not confident in the standing of those bringing them.

I'm particularly troubled about the issue more on the conceptual basis (not the wiretappings themselves, at least as much as I know about them) because the President's assertion would seem to impose no control by Congress over the military if the President disagreed with it (other than funding)--and gives an "out" for pretty much anything the President can say would be "necessary" or "helpful" in "fighting terrorism."

--Philistine

[Slim]

Originally Posted by epeemike81

And who, pray tell, appointed the Atty Gen.?

So, all a president has to do to make something legal is appoint a yes man as attorney general?

the briefs to select members of congress are of very little relevance, as the information was classified, and they were thus barred from actually speaking out against said program. Additionally, some of those key members of parliament, err, select members of congress have said that those briefings were misleading as to the acts undertaken by the program.

-m

The AG doesnt make laws or magically "make" something legal. He is consulted by the president as to the "legality" of matters. If there is a dispute, that's what the courts are for....to intrepret the law.

Perhaps you're missing the concepts of "classified" and "secret". Only certain people are supposed to know. Most politicians cant seem to grasp it, so dont feel bad.

So you're saying it didnt matter that he informed members of congress? Hmm. I suspect you'd be among those who would be bashing even harder if he had not.

[Feltan]

Originally Posted by epeemike81

And who, pray tell, appointed the Atty Gen.?

So, all a president has to do to make something legal is appoint a yes man as attorney general?

the briefs to select members of congress are of very little relevance, as the information was classified, and they were thus barred from actually speaking out against said program. Additionally, some of those key members of parliament, err, select members of congress have said that those briefings were misleading as to the acts undertaken by the program.

-m

The AG is the reference point the President uses for things like this. This is the process every President, regardless of political affiliation, follows. Did you expect Bush to consult with the Rose Law Firm?

And while briefing select members of Congress (who had the clearance to handle such information) does not make something legal, to me it is a sure sign that the President -- at a minimum -- did not think the act was illegal.

Regards,
Feltan

[epeemike81]

Originally Posted by Slim

The AG doesnt make laws or magically "make" something legal. He is consulted by the president as to the "legality" of matters. If there is a dispute, that's what the courts are for....to intrepret the law.

I agree completely that the AG doesn't make laws. That was, in fact, my point in responding to feltan who asked "How "illegal" can an action be when the President gets the blessing from the US Attorney General and briefs select members of Congress?"

Perhaps you're missing the concepts of "classified" and "secret". Only certain people are supposed to know. Most politicians cant seem to grasp it, so dont feel bad.

So you're saying it didnt matter that he informed members of congress? Hmm. I suspect you'd be among those who would be bashing even harder if he had not.

I'm quite familiar with the concepts, and don't necessarily think it's wrong, but then don't hold up said gag-ordered briefings as evidence of it's legality (e.g., "If it were illegal, would he really have briefed congress?"), as feltan did.

-m

[achilleus]

Originally Posted by Feltan

The AG is the reference point the President uses for things like this. This is the process every President, regardless of political affiliation, follows. Did you expect Bush to consult with the Rose Law Firm?

And while briefing select members of Congress (who had the clearance to handle such information) does not make something legal, to me it is a sure sign that the President -- at a minimum -- did not think the act was illegal.

Regards,
Feltan

Ignorance is no excuse.

Whether Bush thought he was breaking the law is irrelevant to the question of legality.

And the AG is just as capable of abusing the law as any other person.

Philistine explains the situation very well, and to be honest, it's scary how much Bush is willing to manipulate the law. I realize it happens in smaller venues, by smaller lawyers all the time, but the scale and the implications are huge.

[epeemike81]

Originally Posted by Feltan

The AG is the reference point the President uses for things like this. This is the process every President, regardless of political affiliation, follows. Did you expect Bush to consult with the Rose Law Firm?

And while briefing select members of Congress (who had the clearance to handle such information) does not make something legal, to me it is a sure sign that the President -- at a minimum -- did not think the act was illegal.

Regards,
Feltan

Perhaps a reasonable rhetorical question for you to ask would have been:
If the president thought the program was illegal, would he have briefed congress?

However, the implication of the rhetorical question you DID ask ("How "illegal" can an action be when the President gets the blessing from the US Attorney General and briefs select members of Congress?") was not that he didn't think it was illegal (which I wouldn't necessarily dispute), but rather that the act was not in fact illegal (which I dispute STRONGLY).

both factors are good evidence that he THOUGHT his actions were legal (or that he's far too powerful and knows it and can thus be brazen), but neither is relevant evidence to the ACTUAL legality of the program.

Do you really not see the difference?

-m

[Feltan]

Originally Posted by epeemike81

Perhaps a reasonable rhetorical question for you to ask would have been:
If the president thought the program was illegal, would he have briefed congress?

However, the implication of the rhetorical question you DID ask ("How "illegal" can an action be when the President gets the blessing from the US Attorney General and briefs select members of Congress?") was not that he didn't think it was illegal (which I wouldn't necessarily dispute), but rather that the act was not in fact illegal (which I dispute STRONGLY).

both factors are good evidence that he THOUGHT his actions were legal (or that he's far too powerful and knows it and can thus be brazen), but neither is relevant evidence to the ACTUAL legality of the program.

Do you really not see the difference?

-m

Yes I do.

And at his level, intent means a great deal. Nixon did not consult nor brief Congress about the Watergate cover up, nor did Clinton about lying to a Grand Jury. They were trying to keep things in the dark, which from my perspective is an important issue. Bush acted as if this was legal, which isn't to say that it is, but it does clarify things.

As for the actual legality; I suspect we could argue until we are old and gray and not come to a mutually acceptable conclusion. In the end, I do not think the Supreme Court is going to limit the powers of the Commander-in-Chief during a time of conflict. I don't think that it is Constitutionally correct for Congress to place such limitations, nor do I think it is a good practice from a pragmatic sense.

Regards,
Feltan

[YankeeRebel]

Originally Posted by Feltan

In the end, I do not think the Supreme Court is going to limit the powers of the Commander-in-Chief during a time of conflict.

Actually, there is a precedent of the Supreme Court stepping in and limiting the powers of the "Commander-in-Chief": Youngstown Sheet & Tube Company v. Sawyer. In the middle of the Korean War, the nation's steelworkers were set to go on strike. President Truman, knowing that a strike would halt the production of weapons and military vehicles, seized the steel mills to keep them open. He claimed this ability was legally derived from his role of "Commander-In-Chief." When the action was challenged, the Supreme Court ruled against Truman.

When considering the extent of the "Commander-in-Chief's" power, Supreme Court Justice William O. Douglas wrote this in his concurring opinion:

"If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II, which vests the "executive Power" in the President, defines that power with particularity. Article II, Section 2, makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs."

Supreme Court Justice Robert H. Jackson agreed:

"The clause on which the Government next relies is that "The President shall be Commander in Chief of the Army and Navy of the United States. . . ." These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued presidential advisers who would not waive or narrow it by nonassertion, yet cannot say where it begins or ends. It undoubtedly puts the Nation's armed forces under presidential command. Hence, this loose appellation is sometimes advanced as support for any presidential action, internal or external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy . . .

His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

Hmmm. "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role." What Jackson is saying is that it goes against the very nature of our free government to turn around and say that a president (acting as "Commander-in-Chief") has free-reign to do what he wants during a time of war. The Commander-in-Chief is the head of the military, but beyond that he is subject to the rules and regulations passed by Congress.