Myths of Presidential Power: Over the Course of Many Successive Administrations, the Presidency Has Slowly Accumulated Unconstitutional Power That the Founding Fathers Never Intended

Article excerpt


The Bush administration daily bombards Americans with hyperbole about the "inherent powers" of the president. With each new act the president predicates on these mythical powers, their destructive consequences expand.

Recently, the president indicated in a "signing statement" that he would disregard four provisions of the 2008 National Defense Authorization Act which, he claimed, "could inhibit the president's ability ... to execute his authority as commander in chief." One provision forbids expenditures "to establish any military installation or base for the permanent stationing of United States Armed Forces in Iraq." Another requires intelligence agencies to turn over to congressional committees "any existing intelligence assessment, report, estimate or legal opinion." A third creates a commission to investigate mismanagement, waste, and excessive force by contractors operating in Iraq and Afghanistan. And the fourth provides protection for whistle-blowers working for government contractors. Defiance of Congress--and of the Constitution--so blatant requires that the legal record be set straight.

The Constitution provides that "The executive Power shall be vested in a President of the United States." This does not grant limitless authority. Rather, constitutional "executive Power" consists of those powers explicitly delegated to the president, and created in the "Laws" that Congress enacts "for carrying into Execution the ... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Inasmuch as "All legislative Powers ... granted [by the Constitution] shall be vested in a Congress of the United States" and "Congress shall have Power ... to make all Laws which shall be necessary and proper for carrying into Execution" the president's powers, the president enjoys no lawmaking power. The president cannot add to or subtract from his constitutional or statutory powers or duties by proclamations, executive orders, directives, "signing statements," or any other decrees.

The Constitution subjects the president to Congress' control in several ways:

* First, exercising its authority "To make all Laws which shall be necessary and proper," Congress may give to or withhold from the president whatever constitutionally valid executive powers it deems fit, qualifying or restricting those powers as to the periods of time in which they may be effective, the purposes for and conditions under which they may be employed, the extent to which their operations may be subject to judicial review, and so on.

* Second, because "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," Congress may specify precisely when, where, and how the president shall spend--or not spend--whatever "Money" may be necessary "for carrying into Execution" any or all of his powers.

* Third, within the limits of its own constitutional authority, Congress can create whatever agencies, offices, and officers it deems "necessary and proper" to fulfill the functions of the executive branch, and can set their durations, purposes, powers, terms and conditions of service, and budgets.

* Fourth, the president can neither dispense members of the executive branch from their duties as imposed by law, nor add to those duties--Kendall v. United States ex tel. Stokes, 37 U.S. (12 Peters) 524, 610, 612-613 (1838). And he must assume ultimate responsibility for whatever transpires in the executive branch.

* Fifth, if the president balks at carrying out Congress' directives, or if he orders, is complicit in, allows, or recklessly disregards illegal activities within the executive branch--in violation of his constitutional duty to "take Care that the Laws be faithfully executed"--he can be impeached, convicted, and removed from office for "high Crimes and Misdemeanors," and then prosecuted criminally, not only under the laws of the United States proper but also for "Offences against the Law of Nations" that Congress has "define[d]. …