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Biden rejects flippant use of executive power pushed by his ‘progressive friends’ in newly leaked audio

Democratic nominee Joe Biden recently rejected the notion that he should use executive authority to accomplish policy goals pushed by his “progressive friends,” noting he doesn’t want the “next guy” to come along and be able to undo everything.

What are the details?

Biden’s remarks — which came during a closed-door meeting with several civil rights leaders including Rev. Al Sharpton and Rep. Cedric Richmond — were obtained by The Intercept’s Ryan Grim and published Thursday morning on his podcast, “Deconstructed.”

During the meeting, a defiant Biden pushed back at suggestions from the civil rights leaders that he use executive orders to accomplish objectives, such as setting up a national database on police misconduct or banning assault weapons, through executive orders.

Though he did vow to use executive power to “undo every single damn thing” that President Trump has done over the last four years.

“So there’s some things that I’m going to be able to do by executive order, [and] I’m not going to hesitate to do it,” he said. “But what I’m not going to do is I’m not going to do … when you’d have some of the people you were supporting saying, ‘On day one I’m gonna have an executive order to do this!’ Not within the constitutional authority. I am not going to violate the Constitution.”

“Executive authority that my progressive friends talk about is way beyond the bounds,” he continued.

“As one of you said, maybe it was you, Reverend Al, whether it’s far left or far, right, there is a Constitution. It’s our only hope. Our only hope and the way to deal with it is, where I have executive authority, I will use it to undo every single damn thing this guy has done by executive authority,” Biden stated.

“But I’m not going to exercise executive authority where it’s a question, where I can come along and say, I can do away with assault weapons. There’s no executive authority to do away that,” he continued. “And no one has fought harder to get rid of assault weapons than me, me, but you can’t do it by executive order. We do that, [the] next guy comes along and says, ‘Well, guess what? By executive order, I guess everybody can have machine guns again.’ So we gotta be careful.”

What else?

Biden’s remarks could have serious implications for how the Democratic Party goes about enacting changes over the next couple years should he become president, and will likely frustrate the left wing of the party.

Progressives likes Sens. Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), and Chuck Schumer (D-N.Y.) have urged Biden to bypass Congress and exercise his executive power on a number of issues, including “civil rights protections, student debt cancellation, raising the national minimum wage, and prioritizing the climate and clean energy,” the Daily Caller reported.

In response to the leaked audio, one progressive commentator called Biden “a dope” and “a f**k.”

“Biden’s worried if he overuses executive authority the next guy will do even worse. The next guy is going to end democracy unless you take really aggressive steps to safeguard it, you dope,” the commentator wrote on Twitter.

Anything else?

In another interesting segment, Biden warned leaders that the Democratic Party should be more careful about how they go about implementing police reform.

He claimed that the Republican Party’s ability to define the party as in favor of defunding the police is “how they beat the living hell out of us across the country.”

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Can the President Pardon Himself?

Most presidential pardons — indeed all pardons that President Donald Trump has issued — have been for specific crimes of which the subject of the pardon has already been charged and convicted. Yet, Trump, never one to be restrained by precedent, has let it be hinted that he might issue prophylactic pardons to relatives and colleagues who have neither been convicted nor charged with any crimes. And he might pardon himself. Can he do that?

The short answer is yes. Here is the backstory.

The pardoning power is expressly and exclusively granted to the president in the Constitution. Article Two, Section 2, Clause 1, states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment.” When unpacked, that broad language reveals that the president can only pardon for federal crimes, not for anyone’s impeachment, and he does not need the approval of anyone else in the government.

Trump is the subject of a criminal investigation in New York City for alleged or potential violations of state laws. But the existence of a state criminal probe of the president does not impair his ability to insulate himself from the legal consequences of a federal criminal probe, since it is clear that the president cannot pardon anyone — including himself — for state offenses.

As there has been little modern litigation over the validity and scope of individual pardons for federal offenses, there is little case law. What case law does exist broadly favors an expansive view of presidential pardon power. The leading case is Ex parte Garland from 1866. There, the Supreme Court upheld a pardon issued to Augustus Hill Garland, a former Arkansas senator in the Confederate States of America.

Garland, who supported his native Arkansas during the Civil War, was pardoned after the war of all offenses against the United States by President Andrew Johnson, even though the former senator had not been charged with any crimes. When federal officials, pursuant to a statute, refused to allow him to practice law in federal courts due to his support of the Confederacy and failure to renounce that support, he sued them.

The Supreme Court ruled in Garland’s favor and held that the presidential pardon power “extends to every (federal) offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”

The language in the Garland case should put an end to speculation about the legal validity of prophylactic pardons, as should our collective memories. President Gerald R. Ford famously pardoned former President Richard M. Nixon in 1974, a pardon Nixon accepted even though he had not been charged with committing any federal crime.

And in 1977, on his first day in office, President Jimmy Carter pardoned hundreds of thousands of young men who declined to be drafted into the military during the Vietnam War era, many of whom had fled to Canada, and nearly all of whom had not been charged with draft evasion.

President George H.W. Bush pardoned six Reagan-era officials in the Iran-Contra affair in 1992, including former Secretary of Defense Caspar Weinberger — whose trial was about to commence at the time of the pardon and at which the pre-presidential behavior of Bush was to have been laid before the jury.

In 2001, President Bill Clinton pardoned his half-brother, Roger, over an old cocaine possession conviction and his former business partner Susan McDougal over a land deal in which President Clinton and his wife, Hillary, had arguably been involved.

Clinton also infamously pardoned Marc Rich for a conviction of income tax evasion, and then accepted a substantial donation to the Clinton Foundation from Mrs. Rich.

All of these pardons were and remain legally valid.

It was well-known to the framers that British monarchs only pardoned for specific, already-charged offenses. Professor Aaron Rappaport of Hastings College of the Law at the University of California, Berkeley, has argued that the original understanding of the pardon power was that it would be used only for crimes that had already been charged. And others have argued that the concept of bilateral fairness — which certainly animated James Madison when he drafted the Due Process Clause of the Fifth Amendment — mandates that no person shall be a judge in his own case.

Both of these points are well-taken and historically correct. If the president pardons for crimes not yet charged, is he exercising powers that the framers never understood that they were giving him? If the president pardons himself, is he acting as a judge in his own case? The answer to both of these questions is yes. Yet, the Supreme Court and history teach that while such pardons may be eviscerated politically, they will be upheld legally.

Before the president pardons his children, his colleagues and himself, he should pardon all those convicted under federal drug laws for use and possession. They harmed no one. He should also pardon Julian Assange, who revealed the slaughter of innocent civilians and the cover-up by the U.S. military in Afghanistan, and Edward Snowden, who revealed that the feds have engaged in secret, unlawful and warrantless spying on hundreds of millions of innocent Americans.

Assange and Snowden have been bitterly targeted and verbally savaged by the Deep State, but these heroes risked their lives and liberties so we might know the truth about government law breaking.

Should pardons produce justice? Sometimes they do — as would be the case for Assange and Snowden. But the essence of a pardon is mercy, not justice — and they are often opposites.

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What’s the Deal With Executive Orders?

In 2014, President Barack Obama raised the ire of Republicans when he circumvented Congress and effectively legislated from the Oval Office utilizing executive orders.

“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama quipped at the time.

Fast forward six years — that pen and phone belong to President Donald Trump, and he’s following right along in Obama’s footsteps.

At some point, another Democrat will inherit the pen and the phone, and the legacy will undoubtedly continue. Each executive order sets a precedent and effectively expands the power of the next person in office.

Presidents have been issuing EOs since the George Washington administration.

So what’s the deal with EOs? Are they legitimate exercises of executive authority? Or are they a usurpation of power?

People seem to adopt one of two extremes. On the one hand, many argue the president can legitimately issue executive orders with virtually no limitation. The left aggressively advanced this idea during the Obama years. In many cases, the president did indeed utilized EOs to formulate policy, shape rules and essentially legislate from the Oval Office. This clearly went beyond the scope of legitimate executive authority.

On the other side of the debate, some claim the president cannot issue executive orders for any purpose whatsoever.

Constitutionally, the truth falls somewhere in the middle.

The president has the authority to issue EOs relating to the operation of the executive branch, and to direct and manage its personnel. For example, Pres. Trump signed an order during his first full day in the White House instituting “a freeze on the hiring of Federal civilian employees to be applied across the board in the executive branch.” The president remains perfectly within his authority to direct staffing levels in executive branch agencies.

On the other hand, the president cannot constitutionally issue orders that implement rules, regulations and edicts applying to the people, orders that bypass the legislative processes, or orders that subvert legislation that was passed by Congress and signed into law. This crosses over into legislative authority. As just one example, EOs establishing environmental rules fall outside of presidential executive authority.

Historian and lawyer Kevin Gutzman summed it up succinctly.

“Article II, Section 1 of the Constitution says the executive power will be vested in a president of the United States. Other members of the Executive Branch are his subordinates. He can legitimately order them to carry out his legal policies. What he can’t legitimately do is order them to carry out illegal policies, as when Obama ordered them to ignore the calendar established by the PPACA and when he used one to rewrite the immigration laws.”

Modern presidents exercise powers far beyond those delegated to them in the Constitution and constantly usurp legislative authority. Much of the blame lies with Congress. It often delegates legislative authority to the president by writing vague, open-ended laws that expand executive authority into the legislative realm. Congress’s delegation of war powers to the executive branch provides one of the best examples.

In the American system, Congress should serve as the most powerful branch, as it most directly represents the people. Instead, America has evolved into a system very much like the one the American revolutionaries sought to destroy.

This article was adapted from “Constitution Owner’s Manual: The Real Constitution the Politicians Don’t Want You to Know About.” For more information about the book, visit ConstitutionOwnersManual.com.

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Executive Power: Who Made Presidents and Governors Kings?

Article II of the Constitution defines the role and qualifications of the president.

The Constitution delegates specific powers and responsibilities to the executive branch including the power of appointment, the power to make treaties with the advice and consent of Congress, the veto power, etc.

These specific powers delegated to the executive are relatively clear and unambiguous. But a question remains: does the president enjoy other non-specified powers as chief executive?

The so-called “vesting clause” leaves this question up for debate.

“The executive Power shall be vested in a President of the United States of America.” [Emphasis added]

What exactly does “executive power” mean in this context? Is it limited by the specific powers listed, or does it include a broader slate of “implied” powers?

Many modern legal scholars claim this clause grants broad, unspecified “executive” authority to the president. They point to the difference in wording between the vesting clause for Congress in Article I and the executive branch vesting clause in Article II to make their case.

The legislative vesting clause in Article I reads:

“All legislative Powers herein granted shall be vested in a Congress of the United States” [Emphasis added]

Proponents of broad executive power claim the omission of the words “herein granted” in the presidential vesting clause infers a broader delegation of authority, whereas Congress remains limited to the enumerated powers in Article I Sec. 8.

But the idea that the vesting clause delegates broad, undefined powers to the president presents several interpretive problems.

In the first place, giving the president a broad range of powers runs counter to everything we’ve already discussed about the nature of the general government. If, as all of the supporters claimed, it was to be a limited government with specific functions, they wouldn’t have given the president virtually unlimited authority. Again, as James Madison put it in Federalist #45, “The powers delegated by the proposed Constitution to the federal government are few and defined.” This includes the powers delegated to the president.

In fact, the founding generation was particularly wary of vesting too much authority in a single individual. After all, it just fought a bloody war to free itself from the tyranny of a king.

We learn in elementary school history classes that American revolutionaries rejected the notion of a king. But it went beyond that. The founding generation also sought to eradicate the concept of a powerful magistrate who ruled over the people and who was empowered to make law. As the Americans split with Great Britain and forged ahead forming new governments, they were ever-fearful of giving power to individuals detached and unaccountable from the will of the people.

The British colonial governors ruled with that kind of authority. The founding generation would have no more of that. As the people of the states began to draft their own constitutions, they placed very little power in the executive branches.

In his book Creation of the American Republic, historian Gordon S. Wood put it this way.

“The Americans, in short, made of the gubernatorial magistrate a new kind of creature, a very pale reflection indeed of his regal ancestor. The change in the governor’s position meant the effectual elimination of the magistracy’s major responsibility for ruling the society – a remarkable and abrupt departure from the English constitutional tradition.” 

This represented a clean break from the then-accepted philosophy of government. In the Old World, executives wielded tremendous power. Instead, Americans vested their legislatures with the greatest level of authority.

Why?

Americans feared the arbitrary power they so often saw exercised by magistrates in the past. And as Wood put it, “only a radical destruction of that kind of magisterial authority could prevent the resurgence of arbitrary power in their land.”

The founding generation believed legislatures best reflected the will of the people because they were directly accountable. And as we’ve already established, the founding generation believed sovereignty was ultimately vested in the people, not in any government institution.

Governors in the new state governments were thus relegated to merely “executing the laws,” essentially an administerial role.

John Sullivan served as a general in the American Revolution, and later as governor of New Hampshire and a federal judge. He took a break from fighting in the winter of 1775 to pen a letter to Meshech Weare outlining his thoughts on forming a new state government. He warned against vesting too much power in a single person.

“And here I must beg leave to observe that, however high other people’ s notions of government may run, and however much they may be disposed to worship a creature of their own creation, I can by no means consent to lodging too much power in the hands of one person, or suffering an interest in government to exist separate from that of the people, or any man to hold an office, for the execution of which he is not in some way or other answerable to that people to whom he owes his political existence.”

This mentality certainly carried over into the drafting of the Constitution, and we should read Article II in that light.

But today, we have utterly abandoned the principles articulated by Sullivan – the principles America was founded on – and returned to the system of unaccountable, absolute rulers the founding generation fought to free itself from.

Modern presidents make laws using their pens and their phones, as Barack Obama put it. They send troops off to war without even so much as consulting Congress. They issue supposedly legally binding edicts and pronouncements pulling from a vast reservoir of assumed executive powers.

But these undefined powers simply don’t exist.

Proponents of a narrow reading of the presidential vesting clause argue repeating the words “herein granted,” in Article II would be redundant, and if a broad grant of authority was intended, the further enumeration of presidential powers following would be superfluous. This would violate standard rules for drafting legal documents in place at the time.

As constitutional scholar Rob Natelson explains in his book “The Original Constitution: What it Actually Said and Meant,” framers of legal documents conveying powers in the late 1700s followed a well-established pattern.

  1. Designation
  2. Organizational details
  3. Enumerated powers

Most colonial charters, the king’s commissions granting power to colonial governors, the Articles of Confederation and several pre-1787 state constitutions followed this pattern. But if the first section of Article II serves as a broad vesting clause in the sense modern scholars claim, it presents a totally new and unique structure, fitting no earlier precedent. As Natelson put it, “An interpretation that fits prevalent drafting customs is far more likely.” (4)

Furthermore, simply saying the president has “executive power” doesn’t really mean anything. Executive power wasn’t specifically defined in the founding era. It was a general term. Executive officers in the British and colonial systems exercised varying levels of authority and operated within different spheres depending on the particular office. There was no list of specific executive powers that were common to all executive roles that anybody can point to. Therefore, the term “executive power,” standing alone, has no real meaning.

It follows we should read the vesting clause as merely a general designation of the president’s role, further defined by the delegated powers that follow, not as a general grant of power. It is simply unthinkable that the founding generation would have imbued the president with a vast pool of undefined powers to define and exercise as he saw fit.

Tucker outlined executive authority in this limited sense in View of the Constitution of the United States.

“The powers, or more properly, the duties, of the president of the United States are various and extensive; though happily abridged of many others, which are considered as inseparable from the executive authority in monarchies: of these last, we have had frequent occasion to notice such as are transferred by the constitution to the congress of the United States; and of those which are assigned to the president… 

Tucker goes on to list the duties specifically delegated in Article II Sec. 2 and 3, and he offers no hint that any additional, broadly defined “executive powers” exist.

Within the constitutional structure, the president lacks any authority whatsoever to issue edicts, write rules and regulations, or legislate in any manner. In an essay known as “Helvidius” Number 1, James Madison clearly states the president’s power extends only to putting existing law into effect.

“The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must pre-suppose the existence of the laws to be executed.”

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Why the Tenth Amendment Should Trump Trump if You Want Liberty

President Trump claimed “total authority” over when the country would “open for business” and end the coronavirus shutdown. Trump said, “The president of the United States calls the shots,”  and claimed the state governors “can’t do anything without the approval of the president of the United States.”

We took a different position – the same one Thomas Jefferson took.

“I consider the foundation of the Constitution as laid on this ground: ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’”

The Constitution doesn’t delegate any power to the federal government to “open” or “close” the country because of a virus. It, therefore, falls to the state governors to take the actions they deem necessary to deal with the pandemic within the limits of their state constitutions.

Nevertheless, some libertarians and sundry Trump supporters cheered the president’s power-grab, claiming that “Trump is saving us from the tyranny of state governors.”

As Robert Wenzel writing for Target Liberty put it, “It appears that Trump is more likely to open the country up sooner than some state governors thus I support his effort.

Wenzel went on to explain that his reasoning was purely pragmatic, writing, “I am not doing this on some legal grounds or principles but on a realpolitik position.”

“As a libertarian and in particular a PPS libertarian, I will not attempt some legal nicety to base my claim on. I will simply cheer him on in this particular effort and argue the point that the economy should be opened up on free market and free exchange principles. That is all. It is possible I could turn on him on the next prominent issue.”

Wenzel’s position seems logical on the surface. Trump appears more inclined toward liberty on this issue. If liberty is our primary goal, we should empower him as much as possible to act. If he goes left somewhere along the line, we can oppose him then.

But Wenzel’s position ignores the existing political structure of the United States. He’s not really disagreeing with the Tenth Amendment Center or some political strategy. He’s disagreeing with the Constitution itself. And engaging in the U.S. political process while arguing that we should just ignore the Constitution is a little like saying Chick-fil-A should stop using chicken.

Granted, Wenzel is not a constitutionalist. In fact, he rejects the entire political system. He wrote, “I see no need for governments, national or local, to rule on matters. I prefer free exchange and respect for private property.”

That’s nice. I prefer to have $10,000 deposited in my account every month. Unfortunately, reality doesn’t cater to my preferences and I would be a fool to spend as if that money was going to show up. I have to live in the real world where money doesn’t magically deposit in my account. And we also have to live in the real world with a functioning political system. As Murray Rothbard wrote, “Libertarians must come to realize that parroting ultimate principles is not enough for coping with the real world.”

Wenzel considers “both national and local governments in their structure as obstacles to freedom.” I don’t disagree. But he goes on to say, “My support is totally on a case-by-case basis depending on which ruling body will provide me the most freedom.” That’s nonsensical. Political systems don’t operate that way. If you’re going to try to use the system to advance liberty, you have to play on its own terms.

The president’s power doesn’t come from his personality. It comes from the Constitution. A president can only exercise the powers he’s given. Wenzel wants to ignore the system and the limits it imposes on presidential power because he likes the possible outcome of Trump’s actions. But if you give Trump this power today, Joe Biden might get to make the call in a few months. Or perhaps AOC in 2024.

This “do whatever is pragmatic for liberty” strategy falls apart in the American political system because when you give one person the power to do what you think is good today, that same person – or a future person – has that same power to do the opposite. You’re not empowering Trump. You’re empowering the presidency.

In practice, Wenzel’s strategy depends on the person in power instead of the powers inherent in the position.

Patrick Henry warned against this.

“Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty.”

Wenzel just blithely blows off “legal grounds or principles.” He trades them in for realpolitik. But how do politicians justify their power? Claimed legal ground and principles! Trump even made a thin attempt to support his assertion of “total authority.” Trump claimed “numerous provisions” authorized him to override local authorities. “We’ll give you a legal brief if you want,” he said.

In other words, legalities matter. Legal principles matter. As John Dickinson wrote, “All artful rulers, who strive to extend their power beyond its just limits, endeavor to give their attempts as much semblance of legality as possible.”

When you simply wipe legal limits on power away, in effect, you’re providing legal cover for the next guy.

Expanding government power for liberty isn’t a winning strategy. This is especially true when it comes to expanding federal authority.

Here’s the big question: why would anyone want the biggest government, the biggest empire in the history of the world – responsible for millions of deaths and trillions of dollars in destruction – to “save” them from some petty local dictator? That’s playing with fire in a big way.

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The Presidency and War Power

Readers of this column are familiar with the concept of the separation of powers, which James Madison crafted as integral to the Constitution. That concept mandates that Congress writes the laws, the president enforces them, the courts decide what they mean and interpret them, and the three branches of government don’t step on each other’s toes.

The separation of powers also recognizes that the Constitution reposes unique authority in each branch and, at times, in each house of Congress. For example, only the Senate can confirm judges and ambassadors and ratify treaties. Only the House can impeach high-ranking executive branch officials and federal judges. Only Congress can declare war, and only the president can decide how to use the military to fight a declared war.

The war powers are clearly articulated in the plain language of the Constitution itself — Congress declares and the president wages. Madison himself argued that if the president could both declare and wage wars, he’d not be a president but a prince. This distinction between declaring and waging was recognized for nearly 200 years, until Congress muddied the waters in 1973 by enacting the War Powers Resolution.

That law permits the president to wage any war against any foreign enemy without a congressional declaration of war for 90 days. This is clearly unconstitutional; the Supreme Court has ruled numerous times that the branches of the federal government cannot cede away powers that have been firmly fixed by the Constitution.

When the tragedy of 9/11 took place, President George W. Bush did not use the War Powers Resolution as his legal basis for invading Afghanistan. Rather he sought express authority for the invasion from Congress. Congress, rather than declaring war on Afghanistan (Bush had persuaded Congress that the 9/11 culprits found haven there), enacted a morally ambivalent law known as the Authorization for Use of Military Force of 2001.

That statute permitted Bush and his successors to fight against any foreign entity that planned or facilitated the 9/11 attacks and to continue fighting even after the targeted entity had been defeated. Bush sought and received another morally ambivalent AUMF in 2002, which authorized him to wage war in pursuit of any governments that harbored weapons of mass destruction, notably Iraq.

I have characterized both AUMFs as morally ambivalent because they are open-ended. When Congress declared war on the Axis powers in December 1941, those declarations authorized President Franklin Roosevelt to wage war on them only until they surrendered and not thereafter. But the two AUMFs have no stated endpoint.

They have an implied endpoint, however. The logical and moral endpoint of the AUMF of 2001 came when the folks who took over the government of Afghanistan and used its government power — this is Bush’s version — to stage and support 9/11 were defeated and killed. The logical and moral endpoint of AUMF of 2002 came when Saddam Hussein was deposed, no weapons of mass destruction were found, and Washington installed a friendly (lately, not so friendly) regime in Iraq.

I offer this brief legal and historical background in order to address the current furor raging over the decision of President Donald Trump to withdraw American troops from Syria. From Syria? What are they doing in Syria?

The United States has had a financial and quasi-military relationship with the Kurdish people who live in northern Iraq — an area they call Kurdistan — since the end of World War I. The financial support has come via covert sources. Stated differently, from the CIA. The Kurds — who are furious fighters — in turn have supported western interests in the region.

In 2017, Trump ordered American troops into Syria to support the Kurds, whose homeland had become threatened by the forces combatting each other in Syria, and who were in the crosshairs of the president of Turkey. Trump used the AUMF of 2001 as his legal authority for sending troops to Syria. That, of course, was enacted to crush those who perpetrated 9/11, not to assist friendly groups 16 years later anywhere in the world.

Nevertheless, Trump’s 2017 decision was consistent with the long-standing, nearly 100-year support that American governments have given to the Kurds. And the Kurds have relied on the continuation of that support.

Last Sunday evening, Trump changed his mind about military support for the Kurds. He did so after a telephone conversation he had with the president of Turkey, who views the Kurds as terrorists. Trump was told that if American troops stayed in Syria, they risked injury by Turkish troops. If they left, the Kurds would be on their own.

His decision to withdraw the troops caused a firestorm among those in Congress who like war and those who believe that the U.S. should be using our military amply in the Middle East to help our friends and oppose our foes. Yet, those in Congress who have cried out the loudest about Trump’s decision care not about the Constitution or even about the powers of Congress.

Trump ran for office promising to bring the troops home. He may have made the latest decision to do so without adequate warning to his military commanders, but his decision is utterly consistent with his promises, and it is utterly in compliance with the Constitution.

Now is the time for Congress — which is largely angry at the presidential use or nonuse of the military — to repeal both AUMFs and the War Powers Resolution and reclaim its constitutional power as the sole entity in the federal government able to declare war. Until it does, these profoundly outdated, morally ambivalent and overtly unconstitutional statutes lie in the presidential desk drawer like a loaded gun.

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The Presidency is too Powerful

Imagine living in a world where a single individual can issue binding edicts directly controlling the behavior of every firm within a nation. Where one man can unilaterally impose his will upon the general public to the point of expressly forbidding trade relations with an entire country. How terrifying does that sound? That may well be the world we live in.

When China announced it planned to impose a new round of retaliatory tariffs that will cover around $75 billion worth of American goods, President Trump responded by saying the United States has “lost, stupidly, Trillions of Dollars with China” and we’d be “better off without them.” He went on to say that

our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing your companies HOME and making your products in the USA.

You may find this preposterous, but following his tweetstorm, Trump correctly pointed out that his executive powers are vast and powerful. He specifically referenced the International Emergency Economic Powers Act of 1977, which allows the president to declare a national emergency and then “investigate, regulate, or prohibit . . . any transactions in foreign exchange.” This gives the executive branch virtually unlimited power to directly control foreign exchange in times of emergency and leaves the executive to decide what an emergency is. That is like telling a kid they are only allowed to have a cookie before dinner when they really need to and then letting them decide when they need to.

Even if Trump does not have the power to directly order all U.S. firms to cease trade with Chinese corporations, the discretionary power held by the executive branch is strong—so strong that he may be able to achieve a similar outcome through other means. He could impose massive tariffs so large they essentially act as de facto prohibitions. He could threaten noncompliant firms with harsher regulations or enforcement that is more aggressive. He may be able to achieve his goals indirectly even if he cannot achieve them directly.

Either way, rhetoric like this shifts the Overton window further and further. We begin to accept things that seemed entirely unacceptable not long ago. We become desensitized. The dividing lines between the different branches of government become increasingly blurred. That is how we got where we are today.

Executive overreach is not a new phenomenon, but it does have an accumulative effect. Each president is able to get away with a little bit more, typically under the guise of an “emergency.” Slowly they amass greater and greater power. Slowly the concept of strictly limited, enumerated powers deteriorates. While each president since the founding has attempted to increase the scope of their power, this behavior took a new form after Woodrow Wilson.

Wilson was able to take advantage of an overly ambitious president’s best friend: war. As FDR’s Attorney General Francis Biddle said, “The constitution has not greatly bothered any wartime president.” Wilson began by going after one of the most fundamental constitutional guarantees: freedom of expression.

After being inaugurated into his second term, Wilson asked Congress to give him the authority to censor the press during times of war, to criminalize the promotion of America’s enemies, and to combat literature that was “of a treasonable or anarchistic nature.” Congress listened and passed the Espionage Act of 1917, which gave Wilson almost everything he asked for except the ability to censor the press. However, just a year later the Espionage Act was amended with the Sedition Act of 1918, which provided for more government surveillance of its citizens and further limited speech that was viewed as detrimental to the government. Wilson finally amassed most of the power he wanted.

Franklin D. Roosevelt continued this legacy of expanding executive power during times of distress. In fact, during his first week in office, FDR used the Trading with the Enemy Act of 1917—a law granting the president vast economic powers during times of war or national emergency—to order a “bank holiday” in order to prevent bank runs. This was particularly aggressive because the act did not give him the power to regulate the domestic economy. Since FDR, executive power has continued to expand and grow, increasing more and more under each successive president. Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton, Bush Jr., Obama, and Trump have each used and built upon the powers seized by their predecessors.

The Founders were afraid of this exact scenario. James Madison, often referred to as the “Father of the Constitution,” wrote that power “is of an encroaching nature” and thought “it ought to be effectually restrained from passive the limits assigned to it.” To combat this tendency, he created a system of checks and balances where each branch has significant authority over their domain and can limit the power of the other branches. Or, in the words of the great modern philosopher Kanye West, “No one man should have all that power.” However, Madison did not predict that branches would delegate their power to the extent they have with legislation like the Espionage Act or the International Emergency Economic Powers Act.

Because of power delegations like these and the normalization of executive overreach, we now live in a world where a single individual can substantially affect the economic activity of an entire nation and where the whims of one man can dictate the behavior of a country. Is that the world you want to live in?

This article by Trace Mitchell was originally published at FEE and was reprinted under a creative commons license and with the author’s permission.

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Constitution Executive Branch executive power Intelwars james madison power Woodrow Wilson

Does the Executive Branch Have Too Much Power?

Does the president of the United States have too much power?

That question has been asked lately with respect to President Donald Trump’s use of federal funds to construct 175 miles of sporadic walls along portions of the 2,000-mile common border between Texas and Mexico. After Congress expressly declined to give him that money, Trump signed into law — rather than vetoed — the legislation that denied him the funds he sought and then spent the money anyway.

It has also been asked with respect to his imposition of sales taxes — he calls them tariffs — on nearly all goods imported into the United States from China, taxes that only Congress can constitutionally authorize. And it has been asked in connection with the presidentially ordered mistreatment of families seeking asylum in the United States by separating parents from children — in defiance of a court order.

This question of presidential power is not an academic one. Nor is it a question unique to the Trump presidency, as it has risen numerous times before Trump entered office. But the audacious manner of Trump’s employment of presidential powers has brought it to public scrutiny.

Here is the backstory.

The Constitution was written in the aftermath of the American Revolution, a war fought against a kingdom, most of whose domestic subjects articulated that the king had been chosen by God to rule over them.

The colonists in America, prodded by radicals like Sam Adams, Patrick Henry and Thomas Jefferson, profoundly rejected that idea. They argued that each individual was sovereign and a repository of natural rights. Jefferson articulated as much in the Declaration of Independence.

So, when it came time to craft a new government here, the drafters of the Constitution, led by Jefferson’s friend James Madison, made certain that there would be no king. Congress would write the laws. The president would enforce them. The judiciary would interpret them. This separation of powers is what the late Justice Antonin Scalia called the most unique and effective aspect of American government.

Why is that?

For starters, Madison feared the accumulation of too much power in any one branch of the government. With the exception of the uniqueness and violence of the Civil War, for 130 years, the branches remained within their confines. For that matter, the federal government did so as well.

Congresses and presidents accepted the Madisonian view that the federal government could only do what the Constitution affirmatively authorized them to do, and all remaining governmental tasks would be addressed by the states. This, too, was part of Madison’s genius in order to impede the concentration of too much power in the hands of too few.

All that changed when a former professor of constitutional law — who was not a lawyer — entered the White House. Woodrow Wilson believed and behaved as though Congress could legislate on any problem for which there was a national political will, except that which was expressly prohibited by the Constitution.

The Wilsonian view of government and the Madisonian view of government are polar opposites.

At the same time that Wilson was turning the Constitution on its head, he was also signing legislation that created the agencies of the administrative state. These agencies, he argued, should be filled with experts in their fields — the Food and Drug Administration, the Federal Trade Commission, to name a few — because experts would bring better government.

The agencies were authorized to write regulations that have the power of law, to enforce those regulations and to interpret them. This slippage of constitutional authority to creatures alien to the Constitution — which branch of government are they in? — masked a parallel slippage of power from Congress to the presidency.

Just as Wilson persuaded Congress that the feds needed experts to run parts of the government, he and his successors persuaded Congress that the presidency should be the repository of emergency powers.

The Constitution does not authorize any emergency powers; nevertheless, the War Powers Resolution lets the president fight any war for 90 days without congressional authorization, even though the Constitution makes clear that only Congress can declare war. Other national emergency statutes give presidents short-term near-dictatorial powers — like imposing taxes by calling them tariffs — without defining what is an emergency.

Scalia railed against all this — and the Supreme Court often struck down power transfers from Congress to the president. It did so not to preserve the institutional integrity of Congress but to uphold the principle of the separation of powers that Madison crafted as a bulwark against tyranny. The constitutional allocation of power among the branches is not for them to alter.

Its equilibrium was intended to maintain tension and even jealousy among the branches — and thereby undergird personal liberty. Madison’s articulated fear was “a gradual concentration of the several powers in the same” branch. Scalia called this gradual concentration of power in the presidency a wolf in sheep’s clothing that became a bare naked wolf.

After years of faithless Congresses legally but unconstitutionally ceding power to the presidency, we have arrived where we are today — a president who spends unappropriated funds, raises taxes, defies courts and changes immigration laws on his own. I have written before that the Republicans who rejoice in this will weep over it when a Democrat is in the White House. No president should have unconstitutional powers.

I have also written that the guarantees of the Constitution — separation of powers foremost among them — are only effective when the folks in whose hands we repose the Constitution for safekeeping are faithful to their oaths to uphold it.

When they are, our freedoms flourish. When they aren’t — power abhors a vacuum — the temptation of tyranny arises.

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