Questions regarding the legitimacy of broad presidential powers

Though I have been hearing it for some time now, it's been coming up in the news again lately. Many of the people surrounding the President - the Vice President, the Attorney General, the two recent Supreme Court nominees, and so on - all seem to believe Article II of the Constitution grants the President broad powers - especially in a time of war.

They've said it allows authorization of torture, it allows bypassing laws the president deems too limiting, it allows warrantless surveillance, and so on with increasing ridiculousness.

I read Article II multiple times yesterday, including all the amendments to it, and I seriously could not find anything that would grant such ability to violate the laws and principles of this country. The only thing, which I suspect is what they are trying convince everyone allows it, is the section defining the President as Commander In Chief. It does not, however, say what that entails, other than that he may get the opinions of military leaders. It also, of course, says "he shall take Care that the Laws be faithfully executed".

If the Commander in Chief argument is all that's allowing the President to do what he is doing, that is ridiculous.

But I'd like to hear an explanation from someone who knows.

Article II of the U.S. Constitution

[edit on 10-6-2006 by LoganCale]

Since no one else has responded - indeed, hardly anyone has even viewed the thread... half the thread views at the time of this writing are from me - I'm going to go ahead and answer some of my questions based on information I read in an article this morning.

President Bush hasn't been shy about putting his philosophy into action. In a series of ``signing statements," Bush has claimed that he has the authority to disobey several recent laws passed by Congress, including a ban on torturing detainees and oversight provisions in the USA Patriot Act. Nor has the president limited his opposition to laws passed on his watch; Bush has also authorized the military to wiretap Americans' international phone calls without warrants, defying a 1978 law, the Foreign Intelligence Surveillance Act, or FISA.

To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This ``originalist" approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.

Source

The article goes on to say that while the White House claims they are looking back to see what the framers intended, they are ignoring other parts of the federalist papers which seem to indicate the Presidential war powers are extremely limited, namely Federalist 69.

Relevant passages are too spread apart to quote easily, so I will just post a link to the full paper. It is not very long. Federalist 69

Either way, it seems like an incredibly weak argument on their part to me.

This thread was posted quite a long time ago, but I remain curious as to the justification of presidential power by supporters of such power. So I'm going to resurrect this thread and ask once again: How do you justify that the President has the legal authority to take actions that are (or were, at the time he authorized them) otherwise illegal and/or unconstitutional? Several examples of such actions would be:

1. authorizing the National Security Agency to carry out domestic surveillance without FISA authorization
   
   
2. authorizing the Central Intelligence Agency to detain, imprison, and torture individuals from various parts of the world (including the US and Canada)
   
   
3. the use of signing statements on legislation to define how he, the President, is going to interperet that bill, regardless of whether it counters what the bill actually says
   

Those are just a few, but they are clear violations of the Constitution, in my opinion. And I haven't seen any legitimate arguments from supporters of the President explaining why this is supposed to be legal.

Logan:

Technically the President has far more power than the Constitution states, and I can tell you that Bush, Clinton, Reagan, Carter, Ford and other have NEVER violated the Constitution.

Why do I say none of them ever violated the Consitution? Because it's not in effect. The reason you can find no connection between the Constitution and our current form of government, is because there is none.

Shoot, We've been living in a state of national emergency since the early 1930's, otherwise known as Constitution-suspention code.

CrazyJethro. That was an interesting statement. I'm curious to see your reasoning. Since nineteen thirty?

In my opinion, and that's all it is mind you, the Constitution is vague on the powers of a President during time of war, so he/she can do what he/she has to do. You can not run a war by committee. This doesn't justify sanctioning torture, if that indeed happened, or any other sort of criminal action. It's that way because there can be only one person in charge.

It is the nature of the executive branch to tug at the constitutional leash. Presidents invariably take an enormous share of the blame for things not entirely under their control. Their out in front, and even though they can only ask the congress to send them something, then say yes or no to whatever congress sees fit to send them, they end up owning it, because they are the central figure and their name is at the bottom of that bill.

So of course Presidents try to wrest a little more power away from congress in order to control their administration's (and the country's) destiny a little bit more, and when they get away with it, they gain greater powers and thus a greater share of public blame, which necessitates even MORE power for a successor who is under even more heat and wants more power to change it.

Signing statements are one particular aspect of assumed presidential power which are totally without basis but seem to be gaining traction.

The failure to define executive orders clearly is a major flaw in our constitution which has paved the way for enormous expansion of the executive as well. They stem from the take care clause but they often end up changing the execution of laws, in effect changing the law. Sometimes they are the executive's version of legislating from the bench. The executive takes a law, derives further principles from it, and applies it to something new in place of new legislation for the new circumstance.

The executive branch (as well as the parties) operate well outside the scope of their constitutional power (which is ZERO in the case of the parties), but it doesn't seem like an easy problem to solve without tearing the whole thing down to some degree. If you're unhappy with current organization, you've got to reorganize, but reorganizing something big requires an organized effort, and who will organize the reorganization? The faulty organizations will. Grand aint it?

The Unitary Executive Theory holds that the Take Care Clause requires the president to take care that all the laws are faithfully executed, including the constitution, and that requires the president to not implement laws he thinks are unconstitutional. It also holds that the president is Commander in Chief of not only the army and navy, but the entire bureaucracy. So the president has the ability to determine what laws to implement and to implement them any way he chooses.

Legislation Regulation: this is what the constitution was intended to establish, not presidential power. Most of the constitution gives attention to the legislative branch for good reason: they spend the money!

Carter once stated the American need to sustain energy supply equated to a moral war. Both Bush Sr. and Bush W. attacked Iraq on behalf of Saudi Arabia. Reagan thought if he could help Saddam defeat the embattled Iranians, that he could share in what would have been the world's largest oil exporting/producing/controlling state's profits. Clinton...shook hands on behalf of the new world order...he may not have been as obvious in his gestures as other presidents. Hell, Eisenhower ended the Suez Crisis, which could have easily boiled into WWIII.

I doubt any of the above circumstances various US presidents have acted under can at all be defined as unconstitutional or within the confines of power given to the president under the constitution.

We are at war. People forget this easily now-a-days. People will act as if it is such a mystery that oil and gas prices have gone up dramatically since the war, yet fail to realize the obvious. There are people, terrorist, jihadists, call 'em what you will, who want to cause harm to America one way or another. Probably, they are being financed by the Russians, but that is a different matter.

Can anyone think that after what happened on 9/11 that the US government would not resolve to torture?

Been like that since the days of Lincoln.

Every US President since Lincoln has claimed his 'authority' for these Executive Orders on Article II, Section 2 of the U.S. Constitution:

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; … He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

In reality, the Congress is completely by-passed. Since the Senate was convened in April, 1861 by Presidential Executive Order No. 2, (not by lawful constitutional due process), there is no United States Congress. The current “Senate” and “House” are, like everything, “colorable” (“color of Senate”) under the direct authority of the Executive Office of the President. The President legally needs neither the consent nor a vote from the Senate simply because the Senate's legal authority to meet exists only by Executive Order. Ambassadors, public ministers, consuls, Federal judges, and all officers of the UNITED STATES are appointed by, and under authority of, the Executive Office of the President.

From Memorandum of Law on the Name, quiete a bit down, but a very interesting piece to read, about legal fiction, legal versus lawful, the spelling of names in all CAPs.
www.wealth4freedom.com...



[edit on 2-12-2006 by khunmoon]