Presidential Power

I’m always glad to have Russ Feingold as my Senator.  I suppose I have Herb Kohl, too, but whatever.  So during the Bush years (which took up far too much of my life thus far), the State Secrets designation was used extensively.  As in, “roughly 90% of all invocations of state secrecy in court proceedings have occurred in the last eight years.”  Now, President Obama has chosen to continue upholding those secrets.  Personally, I’m just hoping that’s a temporary thing as those secrets are reviewed, and that most of them will then be released.  But in the meantime, Senator Feingold was quick to criticize the move and request a special briefing by the White House as to why they want to maintain those secrets.  Which is a good thing.  We need people to stand up to the President on these issues.

I’d like to believe that President Obama is going to do the right thing.  I’d like to believe that he’s not going to abuse the powers at his disposal.  But even if we believe those things, he won’t be President forever.  Laws need to be put into place or existing ones clarified in order to ensure that future Presidents don’t run wild like our last one did.  That’s why I’m glad to see that Congress is acting to correct these problems.  This is, of course, just the first step, but if they’re willing to act on this, I’m hoping that they’ll continue on this course.  I’m just kinda pissed off that we needed a Democratic President to get the Democrats in Congress to actually push this through.

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  1. #1 by diebretter on February 16, 2009 - 11:20 PM

    Have you noticed though that Feingold tends to actually think? I wonder if that’s maybe why he got elected in the first place with all the budgetary constraints that he had.

    But, you know, it’s sad that this thing is even really needed. All the branches are of equal power (theoretically). The president only has powers enumerated in the Constitution, given as hidden by the Court and given by Congress. New powers don’t just appear out of thin air.

  2. #2 by Chadwick on February 16, 2009 - 11:31 PM

    Well the problem is, the President doesn’t really have only the powers enumerated in the Constitution. Those powers? Not really enumerated much. It was left kind of open-ended, it seems out of fear of offending George Washington by suggesting he might overstep his bounds. I mean, he’s the guy that some people wanted to set up as the King of America. And he turned it down. So they just sorted fudged on that one.

  3. #3 by diebretter on February 17, 2009 - 8:13 AM

    Ehh, the Court has said what they can do with regards to what is listed. It says nothing in there of privacy for us but it is implied from the Ninth Amendment. Under Article Two though, you really can’t make too many implications because it’s pretty lock tight, with the exception of “the Executive Power”. But again, you can get some general feel from reading the rest of it what they wanted. It’s kind of going like “you can take this change in this jar and spend that” (with $.50 being in there) and going out getting cars and houses on loans because you had that first 50 cents. Are they the same thing? Yeah, spending money, but $.50 to $500000 so there’s also a world of difference between what was meant and what was actually done.

    Like, the president is given power to control the military so it’s not really a huge stretch to imagine that he’d be given the right to declare war (work with me here, I know Congress does this but still), not take over the entire world in a fit of domination.

  4. #4 by Chadwick on February 17, 2009 - 12:03 PM

    And yet here we are, with the President having completely overridden what we thought were the boundaries. Article Two has one major problem, especially set next to Article One. Article Two says, “The Executive Power shall be vested in a President of the United States of America.” They go on a few clauses later to list some of those powers, but when you look at Article One which reads, “All legislative Powers herein granted shall be vested in a Congress of the United States,” (emphasis mine) it clearly delineates that Congress can do certain things. The line about simply “Executive Power” being granted leaves Article Two completely open on that count. It’s like saying “You can go to the store, or you can get lunch,” as opposed to “You’ve got the ability to go to the store and get lunch.”

    That’s where the Bush administration had an effectively free hand to write legal memos arguing for the ability of the President to do nearly anything. It’s not explicitly limited as the Legislative article is. I partly blame Alexander Hamilton. He wanted the President to rule for life, and have near-monarchy power. I’d like to refer you to this article at The Atlantic which takes a look at this. I don’t agree with all of Epps’ conclusions and solutions, but I think he’s got a good grasp on where this problem came from.

  5. #5 by diebretter on February 17, 2009 - 2:27 PM

    That’s where I said they left it open but the point is that they should look towards the Constitution to figure what they can and can’t do. Giving someone permission to do one thing doesn’t necessarily give someone permission to do something kind of almost in the ballpark of the same area.

    Article II §3 says that he shall “recommend to their consideration such measures as he shall judge necessary and expedient”. Does this mean that he should just tell them that he thinks it’s important or that he tells them to consider it? Well, seeing as how the next line is “he may, on extraordinary occasions, convene both Houses, or either of them” I think it’s a safe assumption that he can tell them to consider it.

    On the flip side, in the same section the very next part of that line reads “and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper”. Did they mean forever, since it’s not explicitly stated, yet it’s kind of implied that it wouldn’t be forever.

    The entire point was that you can kind of get a feel for what they (the framers wanted) wanted (maybe not that) or what is legit considering the challenges and rulings of the Court. Could one of these rights eventually be the ability to completely disband Congress? Possibly, but given what’s stated it’s unlikely.

    And, I will say that the Court has said that state secrets are one of the executive power things (which is what Nixon tried to use when he got impeached), but that doesn’t mean necessarily the taking of all information relating to everything and keeping it secret.

    But, I will say that Bush got what he got because Congress was gutless to stand up to him. Had they really wanted to they could have limited it, they could have passed an amendment saying that they would define what executive powers are in future laws down the road. They could have impeached him for failing to uphold the Constitution. Hell, we have the FOIA to deal with the secrecy of the last administration and look how well that worked. In more than a couple cases the courts issued judgments to fulfill the request and in more than a couple of those cases the original petitioners had to go back and file suit for specific performance.

  6. #6 by Chadwick on February 17, 2009 - 6:05 PM

    I think impeachment is the only thing that might have worked. He just overrode a pile of laws anyway. Unless Congress actually threw him out, it wouldn’t matter what laws they passed.

  7. #7 by Phillip on February 17, 2009 - 7:55 PM

    You know though, that does pose a whole new range of questions. What should happen if the president one day just decides to not follow absolutely anything? In theory he can temporarily disband Congress, he can ignore courts. What would happen if he did this near an election period? Would the army suddenly recognize that he’s not president? Sure this may fall under §4 under treason but the trial would have to be done by Congress but if that’s adjourned…

    But, I do agree, impeachment is the only thing that would have worked.

  1. Feingold Cornerstone Committee « Around Teh Table
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