The Executive, Continued

I had planned on making this post a continuation of our read through the Constitution, but one reader asked me about part of the last post, specifically, about executive orders.  With that in mind, I'd like to explore that a bit, as it is a timely topic in the news today.

Yesterday, January 16, 2013, President Obama signed a series of executive orders regarding gun control.  What IS an executive order, anyway?  Is it Constitutional?  Does it have the force of law?  How far can a president go with such an order?  Obviously, this is a series of questions that can go on forever, but let's take at least a brief look:

What is an executive order?  Generally speaking, it's a directive from the president that clarifies or focuses the action of Congress on an executive agency.  The orders are not laws, as only Congress has the power to pass laws, but they can be far-reaching and effectively regulate a great deal without actually being laws.  Therein lies the debate over executive orders.

Are executive orders Constitutional?  This may sound like a politician's answer, but it seems to be "maybe"?  The Constitution itself is vague, almost silent, on the subject, other than a brief phrase in Article II, Section 3 that says "he shall take Care that the Laws be faithfully executed".  It's a pretty flimsy basis on which to invest even more power in the executive, but it has become accepted practice, with certain boundaries.  If the president were merely clarifying acts of Congress to the executive agencies, there might be little controversy.  So, what are some examples of orders that may overstep the bounds of the president's authority?

All presidents have used executive orders to one degree or another, but until the early 20th Century, most were unwritten and fairly benign, seen only be the agencies to which they were directed.  Until 1952, there were no actual guidelines for them, either, until President Truman's plan to nationalize steel mills during the Korean War was struck down by the Supreme Court as an attempt to make, rather than clarify, law.  Other sweeping executive orders that were controversial for their large scope (either for good or for ill) include Truman's order to integrate the armed forces, Eisenhower's order to integrate schools and FDR's order which led to the internment of Japanese-Americans during World War II.

So, what can be done about unpopular executive orders?  The Supreme Court can find them unconstitutional (though it has only done so twice).  Congress cannot veto them, though, as veto is an executive function. Congress can, however, vote to stop funding for any executive action, though the funding action itself can be vetoed by the president (and therefore require require a two-thirds vote in Congress to override the veto!).

So, what does this have to to do with today's issues?  President Obama issued executive orders yesterday that dealt primarily with better enforcement of existing laws, but not anything that could be construed as making new laws.  That can only be done by Congress.  The fact that 23 new executive orders were issued is remarkable, though.  I'm not sure what the one-day record is, but this must be a contender.

Certainly, every president must have had some issues which he wished he could push through without Congressional approval, but the fact that the Constitution limits the power of the president AND the Congress (at least, in theory), ensures that neither gets too powerful, yet neither is relegated to insignificance.

Next up (barring any other breaking news) - the branch that watches over the other two and hold the most cards in terms of determining the constitutionality of laws and orders: the Judiciary.

Article Two - The Executive

For such and important position, the article describing and authorizing the executive (the president) is fairly short.  Yet, in the beginning, the title for this office holder was fairly long.  "His High Mightiness, the President of the United States and Protector of their Liberties" (yes, really!) was initially the formal title for George Washington, though this, to many, sounded entirely to monarchical and at the urging of James Madison and the House, it was shortened to simply "Mr. President".  John Adams thought that this shorter title lacked prestige (and no doubt gave ammunition to his critics who thought him a monarchist), but was unsuccessful in changing it, even when he was president.  But I digress a little.

Section One of Article II simply states that all executive power lies with the president.  Sounds simple, but was a departure form other governments in which executive power was shared by a leader (such as a king or prime minister) and a body of advisers or legislators.  This ensured, in our case, the separation of powers and established the system of checks and balances with which we are all familiar.

Section One also established the method of electing the president.  Indeed, of you think the Electoral College process is confusing and cumbersome now, go read the original.  Suffice to say that the 12th Amendment simplified the process a bit.  And rather than go into the relative merits of the Electoral College System here, you can refer back to my previous blog about it here: 

http://jamesmadisonandme.blogspot.com/2012/08/hamilton-got-it-wrongsort-of.html

This section also spelled out the requirements for eligibility to be president: natural-born citizen, age at least 35, and having been a resident of the U.S. for at least 14 years.  It also provides a mechanism for removal of the president, and succession (modified later by the 20th and 25th Amendments), and for the president's compensation.  Finally, it contains the wording for the president's oath of office.

Section Two appoints the president as commander-in-chief of the armed forces, establishing civilian control over the military - a time-honored tradition and a system that has generally been proved effective.  It also gives the president the power to enter into treaties and appoint judges and other officers of the nation (both with advice and consent of the Senate).  In the case of recess of the Senate, the president can also make appointments, but such appointments expire sooner than confirmed ones.

Section Three requires the president to report to Congress regularly - what we now know as the State of the Union Address.  It also gives him the power to convene Congress during extraordinary circumstances, to execute the laws of the land, to receive foreign ministers and ambassadors and to commission officers (for example, my own commissioning order has President George H.W. Bush's signature on it).

Section Four states simply: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."  The actual process of impeachment is rather cumbersome, and probably rightly so, as it prevents impeachments over purely partisan, trivial matters.  To date, only two presidents, Andrew Johnson and Bill Clinton have been impeached, though both men were later acquitted.   (Nixon resigned when he knew articles of impeachment were imminent.)

Next up - The Judiciary

Article One - The Lawmakers

Continuing the series on the Constitution, we left off last time with the Preamble.  An attentive reader (okay, my sister) asked what exactly it means "to secure the blessings of liberty".  A very good question, and one I think we have to take back to the Declaration of Independence.

You will recall that Jefferson wrote in the Declaration: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."  Remember that the Declaration was in large part a list of complaints against King George and the colonists were declaring that the actions and attitudes of the king were antithetical to liberty and self--governance.  This, to me, seems to be the "securing the blessings of liberty" idea - that true liberty cannot spring forth from royal decrees or indeed from any system in which the people - the citizens - themselves have no say in their governance. 

It is with that idea in mind, I believe, that the concept of government of, by, and for the people became a reality with the Constitution, specifically in Article I, which we will now explore.

Article I - The Legislative Branch.

The founders brilliantly conceived this system, the bicameral setup, in order to strike a balance between large and small states - one chamber representing the population in proportion, the other representing the states equally.  This ensured that there would be no "tyranny of the majority" in the House, nor would there be disproportionate power given to the smaller states by their equal representation in the Senate.

Section 1 simply states that all legislative powers belong to the legislative branch.  It seems obvious, but I believe they were making a statement against executive fiat (such as a royal proclamation).  In more modern times, we see presidents issuing Executive Orders more and more often, and I have to believe that such orders are contrary to what the Founders had in mind - that is, laws, or at least regulations, that have not been approved by a legislative action.  Likewise, we see judicial decisions carry the force of law, rather than merely interpreting the law.  I doubt the Founders would be pleased by either of these developments.

Section 2 sets the framework for the House.  Elections every two years, to ensure the best possible representation of the will of the people; minimum age of 25; the "Three-Fifths Compromise" (later modified by the 14th Amendment), counting slaves and Indians as three-fifths of a person for census and representational purposes (on the surface, this seems terribly racist, but it in fact likely helped speed the end of slavery - perhaps a topic for another blog some time); and the original numbers of representatives for each state.

Section 3 addresses the Senate. Senators were to be elected by the state legislatures (later changed to direct election by the 17th Amendment); minimum age of 30; the Vice President of the United States is President of the Senate, but only votes in case of a tie; and the Senate's power of impeachment.

Section 4 sets the prescribed time and manner of meetings of the two bodies (later changed by the 20th Amendment)

Section 5 allows each chamber to make its own rules and directs them to keep a journal of all proceedings, to be made available to the public (The Congressional Record).  It also allows for each house to set rules for quorums, discipline, recesses and adjournments.

Section 6 addresses compensation for Congressional members (modified by the 27th Amendment - the amendment that took over 200 years to ratify.  Draw your own conclusions about that!). This section also directs that any member may not hold any other federal office at the same time, preventing conflicts of interest.

Section 7 directs that all revenue bills originate in the House.  Presumably, this was to keep the spending of the peoples' money as close to the people as possible, and as accountable to the people as possible.  This section also addresses the presidential veto and override provisions.  Perhaps most importantly, this section directs that all votes be recorded, so that the people may know how their representatives and senators voted on any and all issues.

Section 8 lays out specific powers of Congress, including: taxation, minting and borrowing of money, regulating interstate and international commerce, naturalization rules, post offices, patents and copyrights, raising a military, declarations of war, and exercising legislative authority over the seat of the U.S. government (the then-yet-to-be-decided-upon District of Columbia).

Section 9 then goes on to impose certain limits on Congress, such as prohibitions on ex-post-facto laws or bills of attainder; no right to writs of habeas corpus shall be suspended; no direct (income) tax to be laid (changed by the 16th Amendment); no titles of nobility are to be awarded by the country and no agent of the government shall accept any such title, except as allowed by Congress.

Section 10 prohibits the states from certain powers, including: no entering treaties; no coining of state-specific money; no import or export duties; no independent declarations of war.

Well, this was a rather lengthy blog, but let's be honest - the Legislative Branch is large and complicated (and we might argue that it is far larger and more complicated than ever intended, or than it needs to be).  The fact remains, though, that the concept was brilliant.  The people and the states getting equal representation, and neither chamber holding power over the other.  Despite the problems we may see in our system, especially these days, the format still works.  It has served us more or less well for 225 years, and I've yet to see a better system, either in theory or in practice.

Next up: The Executive Branch.

In The Beginning...

I'm sure that all of you regular readers have done your homework by now and have read through your own personal copies of the Constitution.  For those of you more casual readers, in case you haven't done so, don't worry - I'm not going to reprint it all here!  I have, however, come to the realization that for a blog about the Constitution, I've actually written comparatively little about the document itself - its structure and content and meaning.  So, beginning with this post, and continuing until we've covered it all, I want to go through the Constitution, section by section, just to give us all a reminder of what is in it, and just as importantly, what is not.

Today, we'll just focus on the Preamble.  I'm sure many of you, like me, had to memorize this in junior high history class and recite it to the teacher in order to earn a good grade for this part of the curriculum (thank you, Mr. Marson!).  Even if we had little understanding of words like "posterity", it was a nice way to introduce at least the basic idea behind the Constitution.  For refresher purposes:

"We the People of the United States, in Order to form a more perfect Union, establish

Justice, insure domestic Tranquility, provide for the common defence, promote the

general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do

ordain and establish this Constitution for the United States of America."

So, what does this little paragraph mean?  Let's look at it, a little bit at a time:

"We the People of the United States" - this is who is making it happen.  Not a king or emperor, not an already-established government or parliament.  Not some upper-class, out-of touch group of aristocrats.  We, the people, as represented by those chosen to participate in the Constitutional Convention.

"In order to form a more perfect Union" - notice, it's not "to form a perfect union", merely "a more perfect union", on other words, better than what we have now.  The original mission of the convention was to update and modify the Articles of Confederation.  They knew that the Articles (like the Articles of Association before it) were inadequate for the maintenance of the fledgling nation.  Ultimately, of course, they scrapped that idea and wrote an entirely new plan.

"Establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty" - they are laying out what they believe are the fundamental responsibilities of a national, or federal, government.  They see its role as limited and general, with very few specific things it can or should do.  Certainly, each of these items can be interpreted to mean much larger things.  For example, FDR's New Deal or LBJ's Great Society can be seen, perhaps, as falling under the "promote the general welfare" clause, though I suspect the Founders did not envision that phrase to necessarily mean an enormous "welfare state".  Likewise, "ensure domestic tranquility" can be seen by some as authorizing an overbearing police state, if condition warrant, though thankfully, such people are rare.  And "justice" means many things to many people - is it "economic justice" (a popular notion these days, as it was during the Depression), and how does one define economic justice?  Or is it a more general notion of fair play and equal protection under the law?  Finally, what does "secure the blessings of liberty" actually mean?  Is it a combination of all the previous phrases, or is it something more esoteric?

"For ourselves and our posterity" - the Founders were looking forward.  Their hope, though they could not be sure of it at the time, was that the new nation would survive and prosper long after they were gone.  Thankfully, they were right!

"Do ordain and establish this Constitution for The United States of America" - again, emphasizing the name of this new nation and declaring it in fact established as the Constitution is ratified.

Coming up - the Articles of the Constitution.  Stay tuned.

It's a Miracle!

Ronald Reagan takes the Oath of Office,
while outgoing President Cater looks on.

 "To a few of us here today, this is a solemn and most momentous occasion; and yet, in the history of our Nation, it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle."  
- Ronald Reagan, January 20, 1981.



In the history of humankind, this orderly, peaceful transfer of power we've come to take for granted in the United States really is borderline miraculous.  The first example was following the election of 1800, a bitterly contested race that ended up in the House of Representatives for a tie-breaking vote (see previous blog entry).  An incumbent (John Adams) lost the vote to a political rival (Thomas Jefferson) and the rival took office without bloodshed, a coup de etat, or violence of any sort (Aaron Burr's killing of Alexander Hamilton in a duel years later aside).  Power was not handed down by heredity or any sort of divine edict.  The people of the nation voted and the Executive Branch of the government changed hands.  It was considered a miracle at the time, as such a shift of power in so peaceful a manner was all but unheard of.  

Indeed today, I venture to guess that the majority of the world's nations have yet to experience this miracle for themselves.  Many nations identify as at least nominal democracies, but truly do not have free and fair elections (Cuba, North Korea, Iran, Russia, much of Africa, and Saddam-era Iraq come to mind right away).  Why is this?  What makes us (and at least most of the developed world) so successful in this free transfer of power?  Is it our Constitution?  Our history of encouraging and expecting fair play?  I'm sure someone far more qualified than I can help explain all the social, economic and political issues that leave so many other countries behind in that regard, but for now, let us appreciate the success we've had here.

I write this on Election Eve, November 5, 2012.  In just over 24 hours, we will know if we have a new president or if the incumbent will serve four more years.  Regardless of the outcome, we will have a peaceful aftermath (threats of riots and civil unrest by fringe groups aside).  If the president loses, the transition will start almost immediately, preparing the president-elect to smoothly take office.  If the president wins, the challenger will almost certainly bow out gracefully and accept the will of the electorate, as has been our tradition (the 2000 election aside).  

I also write this, conveniently, from the State of Virginia, beloved home of this blog's namesake, James Madison (and also of a couple other interesting guys named Washington and Jefferson, to name a couple).  Tomorrow, I will be watching the Electoral College map and election returns from Connecticut (home of Roger Sherman - see earlier blog about him), right on the Massachusetts border (home of Adams).  I feel perhaps a little keener sense of history being in this part of the country on such a momentous occasion, and except for being home on election day, I think there are few better places to be.  

Let us, then, celebrate our representative system of government, fair elections (allegations of voter fraud aside for now), and the continued tradition of peaceful transfer of political power - unique in history when it began in 1801, and still unfortunately rare today.  God bless America!

You think THIS is nasty?

With a week to go until the presidential election of 2012, I'm sure we're all tired of the ads, the phone calls, the flyers, the mailers, the Facebook posts and everything election-elated.  Tired, especially, of the negative campaigning.  I mean, can't we all just get along?  And has it ever been this bad?

Well, yes, as a matter of fact.  The election of 1800, pitting incumbent John Adams against his long-time friend and political rival Thomas Jefferson (with running mates Thomas Pinckney and Aaron Burr, respectively) is often cited as the nastiest ever.

Alexander Hamilton, especially, scorched Adams with a 54-page criticism that unfortunately also wounded Hamilton's choice for president, Pinckney.  All the scheming and mechanizing got messed up, though, and since the candidates were all on separate tickets, running mates Jefferson and Burr ended up tied in the Electoral College.

As you all know, an electoral tie goes to the House of Representatives for resolution.  After 35 (yes, 35!) votes, and a heavy lobbying effort by Hamilton, the 36th vote finally gave the presidency to Jefferson.  Burr, of course, never forgave Hamilton and ultimately killed Hamilton in a duel (see previous blog entry "Meet Alexander Hamilton").  So, as nasty as these campaigns today are, chances are nobody will die in a duel in the aftermath.  I hope.

Now, just for fun, what might that campaign have looked like if there had been television in 1800?  Well, in their words:
http://www.youtube.com/watch?v=G3DAET89ypM

Now, go vote!

We Should Have a [fill in the blank] Amendment

 Everyone has his or her concerns, very real and strong concerns.  Some so strong, in fact, that one of the most popular political topics of discussion is amending the Constitution to address those concerns.  How many times have you heard people say we should amend the Constitution to ban flag burning, gay marriage, or the Electoral College, or mandate a balanced budget or any number of other topics of debate?

 Hearken back to my previous post about the longevity and durability of our Constitution.  I make the argument that the very fact that the Constitution is not only long-lived but little-changed is proof of the genius of its creators.  I still maintain that, though I've recently stumbled across a counter-argument that makes a good case for needing to make amending easier, not harder.  Timothy Lynch of the Cato Institute wrote in the Tennessee Law Review that the difficulty of amending the Constitution makes people shy away from addressing problems in our society and government through that means, but rather forces them into using judicial or legislative means, which may in fact run counter to the principles of the Constitution.  He makes a good point that perhaps there are times when the Constitution should be the place for a certain remedy, rather than the courts or legislatures, but the process of doing so is too cumbersome.  See his full argument here:  

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1906696

I still maintain that the difficulty of amendment is a good thing.  Changing the Constitution is a very big deal.  It's the basis of our government, the very foundation.  A too-easily amended document makes it too easy to change the basic tenets of our government, while setting the bar too high (Lynch's argument) makes people use other - perhaps unintended by the Founders - means to take care of business.  James Madison says in Federalist 43, that Article V of the Constitution strikes the right balance: “It guards equally against that extreme facility, which would render the  Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”  As usual, I tend to side with Madison, but Lynch makes a good case.

I recently had an interesting discussion with a co-worker about the Constitution.  She insisted that our beloved document had basically no relevance to today's society and provided no protection or assurance of rights to her or anyone else.  What really shocked me about this was she is a naturalized citizen.  Typically, naturalized U.S. citizens are the most vocal and strong supporters of the Constitution, considering what kinds of governments most left behind to come to the USA.  Such citizens also tend to know the Constitution better than most, since they had to study it to earn citizenship.  I asked her, then, in her opinion, how should we amend the Constitution to make it better?  She had no answer, other than to go on a rant about medical marijuana, organic farming, the evils of Monsanto, and freeing Palestine - none of which had anything to do with the Constitution, of course.  A small example, of course, but I think one that illustrates my point that we should not amend the Constitution for every little grievance or problem, either real or imagined, we encounter.

The food for thought here, then is this: Is whatever problem we are debating truly a Constitutional issue?  In other words, do we need to change the very foundation of our government to address it, or is it better addressed by legislation, and if so, should it be at the federal or the state level?  Given the concerns of my co-worker above, for example - is organic farming (or reining in big, bad Monsanto) really an issue for the Constitution, or is it more a regulatory concern?  Likewise, medical marijuana.  And are those more state concerns than federal?  While the issue of Palestine is a concern of the federal government, is it something that needs to be addressed in the Constitution?  More broadly, how about the federal budget?  We all are concerned about that, no doubt, but how would an amendment mandating a balanced budget work?  What would be the penalty for failing to do so?  While I like the idea in theory, how do we put it into practice?

There are plenty of areas of concern I have, just like everyone else.  For example, after 21 years in the military, I obviously have a great love and respect for the flag.  It irritates, even enrages, me to see someone defacing, defiling or burning the flag.  Yet, I don't believe an amendment prohibiting that is warranted.  It would, in my opinion, be in direct conflict with the First Amendment.  As much as I hate seeing it, the irony is that 21 years of my life were willingly spent defending someone's right to do it.  As Voltaire is reputed to have said (there is some debate whether or not he is the originator of this quote), "I may disagree with what you have to say, but I shall defend, to the death, your right to say it."  That said, if there were some statute offering amnesty for anyone who beats up a flag-burner, well, I'm on board with that...