I want to clear something up about the Constitution... help me

[rockymountaindem]

I saw on DU the other day, I don't remember where, that some Republican Congressman, arguing in favor of the "unitary executive" that "the founding fathers intended the executive to be the most powerful branch of government, the legislature second, and the judiciary third".

Now, I ain't no fancy laiwyer, and correct me if I'm wrong, but aren't the three branches of government supposed to be co-equal, each having power over the others in some ways and being subservient in others? Am I totally wrong on this or not?

And how sad is it that we're even discussing the phrase "unitary executive" in this country of ours?

[JeffR]

1. You read it right

The Republicans have their own paint-by-numbers version, it seems.

[The Magistrate]

2. The Founders, Sir

Desired the Congress to be "first among equals", and feared Executive power most of all. No serious student of the subject has ever held otherwise, and it is impossible to read their own comments in The Federalist Papers without drawing that conclusion.

[rockymountaindem]

3. So the branches are not equal

The legislature is superior? "First among equals" has always been a contradiction in terms to me.

[The Magistrate]

8. Superior Is A Little Strong, Sir

Think of a company with three stock-holders, one who has forty percent of the shares and the other two having thirty percent each. They are equal on the sense that any two can combine to over-rule the third, but one is first in a sense as well.

The Congress has more power than the Executive or the Judiciary, and has several powers specifically intended to serve as check upon the Executive. It has the power to dismiss the Executive through impeachment. Its Senate has the right of refusal over Executive appointments. It holds the exclusive power to declare war, and has the power to grant or withhold funds for the Executive. The Executive has no power to dismiss the Congress, and if the Executive vetoes an Act of Congress, the Congress may over-ride his objection. Strictly speaking, this is not quite an evenly balanced arrangement. The Judiciary, too, is subject as much to the Congress as to the Executive, both by Senatorial right of refusal to judicial appointments by the Executive, and by control of funds. The Judicial power to rule Acts of Congress signed by the Executive void as contrary to the Constitution does not appear in the Constitution, but was established at such an early date, and is so firmly rooted in the Common Law traditions of England, as to be unassailable. Yet Congress even has some power over this, for Congress may determine by an Act that Federal judges are not entitled to review particular matters of law.

Most of the powers of the Executive exerted in the modern era are not, strictly speaking, Constitutional at all, but are customary, and flow mostly from the Executive's authority to conduct its own affairs within the law, and budget appropriated. Obviously, the Executive must have the power to direct its subordinate offcials, and give them orders directing what they are to do in applying the law and expending their funds, and so there are Executive Orders, used at an ever increasing pace. The recess appointment, Constitutional but intended for a specific circumstance when communications were slow and uncertain, and things might well have to be done when Congress was not available, have grown into a tremendous loop-hole in a structure intended to provide very tight control over appointments. The Executive's ability , as commander in chief, to commit military forces to combat short of war has grown hugely beyond anything originally envisioned. In the nineteenth century, such a power was often, due to difficulties of communication and local exigencies, effectively invested in a naval captain or a consul in a foreign land faced by some clear threat to U.S. interests, property or citizens. Later, the sort of "gun-boat diplomacy" commonly employed was always something obviously far short of war, and never involved a major commitment of the nation's military forces. Since the Cold War, this customary arrangement has simply grown out of all recognition, and with the legal farce of the War Powers Act, the Congress effectively turned over its Constitutional power to the Executive, enabling the Executive to commit U.S. forces wholesale without a declaration of war, though Constitutionally, any such commitment under this delegation of authority falls short of a legal state of war.

[smoochpooch]

10. Do you think Bush has a leg to stand on

when claiming inherent authority to authorize wiretaps? Should it get to the Supreme Court, I doubt the argument would fly, but I expect Rep. in Congress would amend FISA long before it got there so the Court would dismiss it as moot.

[The Magistrate]

11. No, Sir, He Does Not

There is damned near no authority "inherent" in the Executive under the Constitution: the Executive's function is to execute the law and conduct foreign affairs and direct miltary efforts, and in the latter two, he must abide by the law. Nowhere is there Constitutional sanction for the Executive to break the law: if he does not like the law, or finds it hampers him in something necessary, he is to go to Congress and petition them to change it, and has no recourse if they do not.

[radio4progressives]

31. Dear Magistrate....

I really wish it was you that appeared in the media, to swat down the lies and half truths promulgated by these Unitary Authority theorists.

You have a way of putting the facts straight, that i haven't seen or heard in the media very often.

[The Magistrate]

34. You Are Too Kind, Ma'am

"The history of ideas is the history of the grudges of solitary men."

"All men of reason are men of violence in their hearts."

[MikeNY]

36. How would illegal surveillance hold up in a trial as evidence?

Unless you don't plan for there to be a trial...

Unless you hold critical evidence of the trial away from the defense and the public and only provide it to the judge...

Unless you just say f*ck it... or just use the name Bush as a verb now.. Bush it..

[The Magistrate]

42. Indeed, Sir, It Would Have To Be Thrown Out In A Trial

A judge would have no choice but to do that.

[xkenx]

20. To change FISA law in any way which removes the warrant

requirement flies in the face of the 4th Amendment to the Constitution.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I don't see how the SCOTUS could ignore the clear wording of the 4th Amendment. They would be obligated to strike down such a law. Bush has openly stated that he was ignoring FISA, thus violating his oath of office, inviting impeachment. That, and the Espionage law violation in outing a clandestine CIA operative working on Iranian WMD, makes Bill Clinton's getting blowjobs on his own time by a consenting adult look insignificant.

[northernsoul]

33. I concur entirely, Sir.

Having acquitted myself reasonably well in my 1L Con Law studies and currently preparing for admission to the bar, my studies of bothe the constitution, the relevant case law, and the Federalist Papers lead to agree with your position entirely. The theory of the "Unitary Executive" reeks of the sort of exotic despotism which was rejected within the Anglo-American tradition as far back as the Magna Carta.

[serryjw]

4. You are correct

Our FF believed that the Congress represented the will of the people( Now isn't that a joke!)

[Neil Lisst]

17. Only three of the founders wrote the Federalist papers.

There were 85 papers, published anonymously under the nom de plume Publius. Madison was primary author on 29, Jay on 5, and Hamilton on 51.

You're correct that the best source for determining what the founders intended is the Federalist Papers, and anyone who really wants to understand what was intended in 1787 and 1788 should study them closely.

While the founders did fear an executive that was too powerful, they were equally concerned about the tyranny of the majority and the excesses of majoritarian rule. That is why they made the Senate six year terms, two per state, and appointed by the states, rather than elected. The lower house would have some power, in that tax bills had to originate there, but the intention was to minimize the ability of popular demands to heavily influence the passage of laws.

While the Federalist Papers are good, they are written by those who were part of crafting the constitution. Other sources that were not written by them are needed to truly understand what the founders were doing. They were driven primarily by economoic concerns, and they did what politicians do now - protect their own regions, their own investments.

AN ECONOMIC INTERPRETATION OF THE CONSTITUTION, by Charles A. Beard, does a good job of showing how the founders were taking care of themselves and their holdings by the votes they made in the Constitutional Convention.

[The Magistrate]

19. Mr. Beard Is A Most Useful Author, Sir

That work is among my books.

[Neil Lisst]

23. Yeah, I first read him over 30 years ago.

I think what the founding fathers intended is literally an academic discussion that matters not, except to the extent that so-called strict constructionists like to claim they know what the founders meant. It's a living, breathing constitution, as interpreted by courts every week.

They meant to craft a constitution that was primarily dealing with property, not human, rights and a stronger government. It took the rabble to get our Bill of Rights included, and maintaining those rights has been a constant fight ever since.

The modern Republican control and their actions remind one of the Reign of Error of the Sam Adams Federalists.

[H2O Man]

26. People might enjoy

Arthur Schlesinger Jr's classic book on this topic, "The Imperial Presidency," from 1973. There is no serious question that the legislative branch was intended to be the most powerful, most of the time. The executive branch, which was the one that some felt too risky to create, would be the most powerful only under limited conditions. These were when a threat from a foreign power was gathering, or immediately after an attack. But even in times of war, there were implied limits for emergency powers.

The judicial was supposed to maintain the balance between the other two, although it was recognized that there could -- indeed, should -- be some friction between the courts, the congress, and the president.

[Dudley_DUright]

41. I read that book in High School and it scared the crap out of me

(I was a little young to personally experience Nixon and watergate). Little did I know that BushCo would use it as a "how to" manual. :mad:

[radio4progressives]

30. Well put.. eom

[Senator]

5. No, not "co-equal"

Congress can impeach/remove both executive branch officials and judges of all levels.

Congress, as the instrument of governing closest to the sovereign power -- which resides in the People, is the most (actually all) powerful.

They have power of purse and of war declaration (bush uses "war" only in the PR sense).

Now, whether a particular meeting of Congress chooses to uphold their oaths of office and use that power to "protect and defend the Constitution," which is a contract between/among the sovereigns -- the American People (currently in breach, btw), is another matter.

The power itself, which can only be derived from the consent of the governed (the sovereigns), remains where it has always resided.

The Constitution only invests in other entities, Federal branches and the states gov'ts, subordinate authority to carry out the People's expressed will.

If I've not been clear, please ask questions.

--
www.january6th.org

[rockymountaindem]

6. I think maybe I didn't express myself in enough detail

What you say makes sense, but here's what I had in mind:

Take for example the legislative process. Congress passes legislation, but it does not become law if the President vetoes it. Thus, the President can exercise power over the Congress. However, Congress can override a veto with a 2/3rds majority. Thereby, Congress can exercise power over the executive. The judiciary can exercise power over both should someone challenge the new law and the court find it unconstitutional.

That's kind of what I had in mind when I said the branches are "co-equal". No branch can do everything it wants 100% of the time. The description to which I made reference in the OP disturbs me because it smacks of Putin and his "power vertical", which is leading to some very un-democratic results in Russia.

[Senator]

15. "Unitary" is just a euphemism for "Authoritarian"

And yes, it is cause for maximun concern.

Only the Stolen Elections would compete with it for Anti-Americanism awards.

---
www.january6th.org

[smoochpooch]

7. Questions that made me want to go to law school

If you think the president should have more power in some areas, you can find evidence of that, if you think Congress was intended to be the dominant force you can argue that position. The NSA spying program is a prime example of interpreting the Constitution to suit your ideology. Ironically, for all of Justice Scalia's reverence of "originalism", without the broad interpretation of the Constitution in Marbury v. Madison the pulpit from which he speaks would be far less commanding- the Constitution does not mention judicial review at all.

[tocqueville]

13. exactly : the problem is judicial interpretation

this part is weaker in many European constitutions, because of the experience of judges as easy lobbied conservatives. FDR wanted to change that system, but didn't succeed. Besides many countries have changed the wording of their constitutions to adapt it to modern values. This doesn't mean that original intentions have to be changed but on the contrary made more explicit.

Another thing is that no law should be voted if deemed unconstitutional. So the process of lawmaking should go through a review BEFORE the promugation:application of the law and not AFTER.

[IChing]

9. James Madison said this, he wrote the constiution and was a president.

"Do not separate text from historical background.
If you do, you will have perverted and subverted the Constitution,
which can only end in a distorted,
bastardized form of illegitimate government. "

"I believe there are more instances
of the abridgement of freedom of the people by
gradual and silent encroachments by those in power
than by violent and sudden usurpations. "

"If Tyranny and Oppression come to this land,
it will be in the guise of fighting a foreign enemy. "

"No nation could preserve its freedom
in the midst of continual warfare. "


"The executive has no right,
in any case, to decide the question,
whether there is or is not cause for declaring war. "

http://www.brainyquote.com/quotes/authors/j/james_madison.html


I could quote more but what would that teach anyone?


edited to put his last words in quote.

[rockymountaindem]

18. Well, I thought those quotes were interesting

Thanks

[DLnyc]

12. Section 1:

"All powers vested herein shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives"

This is the FIRST PARAGRAPH in the Constitution. It seems pretty clear that the intention was that "All powers vested herein shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives".

I say that because the first paragraph says, verbatim: "All powers vested herein shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives".

So that makes me think that "All powers vested herein shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives"

In addition, I count about 67 lines detailing the powers of Congress, and 21 detailing powers of the executive. This reinforces my opinion that the intention was that "All powers vested herein shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives".

Of course, what do I know? I'm just a silly citizen, not a member of the BFEE ruling elite.

[fliesincircles]

21. So, what's your point ?

[rateyes]

24. Congress has the power of the purse strings....

they don't want it, all they have to do is pull the funding. Congress has the power to regulate the executive branch's powers. Congress is THE PEOPLE'S house.

You are correct, and a great American.

[Buns_of_Fire]

14. The Iraq War Resolution (IWR) may have dangerously tipped

the scales, though.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. http://www.pbs.org/newshour/bb/military/terroristattack/joint-resolution_9-14.html

Talk about open-ended. Congress handed it over to Emperor Chickenshit the Unitary on a silver platter. I don't see it as any great surprise that they invoke "911" at every opportunity.

[EVDebs]

28. Both the Sept 2001 and Oct 2002 AUMFs give Bush the Congress's power

Each AUMF lets Bush "as he determines" , as the highlited portion above shows. This violates the War Powers Act of 1973, since Bush's fabrications and fantasies and whims (WMD's anyone ?) allow for any pretext he can dream up.

The WPA of '73 requires 'clarity' and truthful 'situations' and 'circumstances', not unnecessary and inappropriate pretexts for whatever b.s. the DoD and the JSC have dreamed up (remember Operation Northwoods ? And Nixon's plans to seize Saudi oil fields in '73 ?).

Congress has abdicated ITS Constitutional powers to declare war and handed them to a looney bird.

[IChing]

16. Why is this not nomiated? ......I'm just a caveman lawyer...sorry fancy

the constitution has been raped.

[unblock]

22. most emphatically NOT.

the founders wanted very much to create a government substantially different from the european monarchies.

plus, they put congress in article i, not the executive.

[Jack Rabbit]

25. That Congressman is full of baloney, as is the unitary executive theory

If you want a good refutation of the unitary executive theory, read The Federalist Papers.

You are correct in stating that the three branches of government were intended to be co-equal with separation of pawers and checkj and balances.

[Iowa]

27. K&R. The quality of the discussion in this thread...

...is the type of thing that keeps me coming back to DU every day. Kudos to The Magistrate, Neil Lisst, Senator, rockymountaindem, IChing, and others.

[rockymountaindem]

29. Thanks friend n/t

[radio4progressives]

32. I'll rate this up for the quality of discussion..

:applause:

[dobegrrrl]

35. Federalist Papers is available in "modern English"

I use it to teach my high school government classes. It is a great resource, is complete and has references to fairly current issues. I believe it would be a great idea if the repugs read it - I doubt that the imperial idiot has.

[Inland]

37. Actually, the Congress is the most powerful branch.

I don't buy the "equal" bit, really: it's not backed up by the document. But its all de jure, that is, Congress is powerful enough that it can delegate authority to the executive, for example, by letting the exec run wild in a national security state.

[Fountain79]

38. The Irony of the Republicans...

Is that many of their predecessors argued for a relatively weak Executive. Men like Calvin Coolidge did not wield great executive power in his office.

[dave123williams]

39. The phrase 'unitary executive' doesn't appear in the Constitution.

The GOP; party of folks with un-resolved 'daddy issues'.

[pinkpops]

40. I think tension between branches was intended but political parties

has complicated the issue. Modern checks and balances has become dems vs republicans rather than executive/legislative/judicial. With party loyalty comes neglect of institutional loyalty. On the subject of the unitary nature of the executive, the prez can always claim direct control over this department or that department, and issue pardons to subordinates to immunize them. But then, the congress can can his ass by impeaching him. That's the way it was meant to be, a struggle between them to keep everybody more or less in-check. There is no clear-cut answer - only political forces to set limits. Unfortunately, all politics has become party vs party rather than prez vs congress.

[happydreams]

43. "We the People".....

Big and bold at the beginning of the Constitution is another indicator of why the FF's wanted Congress, the best representation of the the people's will, to be the strongest of the three branches.