Executive Overreach

I’d like to provide more in dept content than posts that merely say “THIS!” in response to what others have written, but I thought this article from Kevin Williamson would serve as a good way of introducing a topic I will delve into more deeply in my next post. Here are a couple of choice highlights:

The presidency is the greatest domestic threat to liberty that this country faces today — not President Donald Trump, nor the president who preceded him, nor the one who will succeed him, but the presidency itself. It is right that so much attention has been given to the character of the current president, but more important is the character of the office he occupies. Those who see in Donald Trump a would-be strongman and autocrat owe themselves some careful meditation upon the nature of the presidency that he inherited from his predecessors. Many went before him to prepare the way.

And here is Williamson knocking down the notion that three branches are “co-equal”:

The Right has given us the notion that the president enjoys plenipotentiary power over foreign affairs and discretion over military policy that is effectively imperial, a word that is derived, appropriately enough, from the Latin word (imperator) for “commander-in-chief.” As a constitutional question, this is rooted in the mistaken belief that the three branches of government are “coequal,” which they manifestly are not. Under our constitutional system, the president is empowered only to execute the laws that Congress makes. He does not have the power to appropriate money or to make law; he does not even enjoy independent power in the military and diplomatic spheres, which is why Congress and not the president has the power to declare war, ratify a treaty, etc. And, as President Trump is being taught right at the moment, Congress has the power to impeach a president and to remove him from office, a power that it also has over all of his appointees and all federal judges. The Right has pushed the notion of presidential imperiality so far that some conservative legal thinkers, including my friend Andrew C. McCarthy, have argued that the president is effectively above the law — immune from mere statutes — when he is engaged in his constitutional duties. Under the “unitary executive” theory, the U.S. government is like that famous engraving of the composite god-king on the cover of Leviathan, with the president’s mystical immunity communicated down through the bureaucratic ranks to invest the lowliest functionary with that “coequal” juju.

Williamson rightly faults both the right and left for pushing their own versions of the imperial presidency for their own specific reasons. He then concludes:

And so we have arrived at a practice of government in which the executive can make war independently, refuse to comply with the law and congressional investigations, make or break international agreements, set the terms of service in insurance markets, destroy banks and other businesses on a whim, and do almost anything else it might wish, with powers great and minute, from assassinating American citizens to specifying the font size on mandatory OSHA posters displayed in the breakroom at the XYZ Corp. of Poughkeepsie.

The remedy for this, we are told, is “political,” meaning that misbehaving presidents can be defeated at the polls or, if necessary, impeached and removed from office. But surely these cannot be the only controls on the president. Though norms and traditions are fine, we need some hard-and-fast rules about what presidents can and cannot do and some clarity about our legal and constitutional basis for those rules. And most of all, we need a presidency that is reduced, one that is put back in its constitutional box and limited to its constitutional role: seeing to the faithful execution of the laws.

So all I can say is: This.

That, and read the whole thing, though I think these are the most salient points.

3 thoughts on “Executive Overreach

  1. I recall some discussion of the Separation of Powers in which we explored intent and whether or not the early Justice John Marshall decisions warped Framer intent to create a system which created a much more powerful legislative branch and diminutive executive and judicial branches. I do not entirely recall our positions and am not entirely sure it matters since the intervening years have no doubt added depth to our views.

    I remain convinced though that a plain reading of the US Constitution, the Federalist Papers, and such selections of the Anti-Federalist writings as I have read, reveal a system such as is described above. It seems to me that the Legislature was intended to be much more powerful than the Executive Branch, right up until such time as imminent threat made rule by many unmanageable. Then, there was intended to be a significant shift towards the executive, not unlike Rome under the Republic.

    If that is right, then Marshall warped the Constitution, perhaps for the better, but warped nonetheless.

    What say you two?


  2. As I said, I am about to expand on the thoughts expressed above, so I may let that post speak for itself. But I never really felt Marshall warped the original intent. I think he read into the constitution a Hamiltonian interpretation of the powers vested into the federal government, but it’s an interpretation that is consistent with the general tenor of what the Framers believed. I’d have to mull on whether his frame of interpretation particularly favored the legislative branch.

    Liked by 1 person

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