Monday, September 11, 2006

Another missing constitutional clause

Glen Greenwald comments on the constitutional views of a Bush legal theorist (hat tip: Daily Kos):
The Constitution is actually pretty clear on that score. Article I says "All legislative Powers herein granted shall be vested in a Congress of the United States" -- Article II says the President "shall take Care that the Laws be faithfully executed" -- Article III says "the judicial Power of the United States, shall be vested in one supreme Court, and in . . . inferior Courts." That arrangement isn't really a side detail or something that shifts based on circumstance. It's pretty fundamental to the whole system. In fact, if you change that formula, it isn't really the American system of government anymore.
I'm not a lawyer or a constitutional scholar, but I do know that Article II, Section 1 also says "The executive power shall be vested in a President of the United States of America."

Of course, it's the current day political agenda that drives this particular constitutional debate. Liberal Democrats are currently heavily invested in portraying President Bush as some kind of extra-constitutional monarch, presumably because accusing someone of monarchical ambitions is a still-effective political smear. The classic examples are the Whig Party's vilification of President Andrew Jackson and FDR's accusation that rich Republicans were "economic royalists".

As I understand it, the grant of executive power to the President in Article II, Section 1 gives the president additional authority over and above his powers as Commander-in-Chief. If I remember correctly, this is because the vesting of executive power to the president may include certain unspecified reserve executive powers that are inherent in the notion of the executive power. For example, the issuance of executive orders may be justifable in this way. So the Democratic case for a King George really depends on scrupulously ignoring the existence of Article II, Section 1.

4 Comments:

Anonymous John Wilson said...

Nuts.

12:14 AM  
Anonymous Anonymous said...

Response to a Nazi request to surrender.

12:18 AM  
Blogger marty said...

The law says both things.
the President "shall take Care that the Laws be faithfully executed" does not refute that "The executive power shall be vested in a President of the United States of America."
Executive power? Check.
President has to faithfully execute the laws? Check.

1:40 AM  
Anonymous Sufo said...

Faithfully signing in to law bills which he intends to break, issuing "signing statements" rather than vetoes? Check. Violating decades-old anticorruption laws (e.g. FISA) whilst simultaneiously praising Congress for updating said laws at his request? Check.
Crackpot legal advisors? Check.

10:56 AM  

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