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POL 313
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The Presidency Pious' Rules of Constitutional Construction |
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According
to Pious, the enumerated powers of the presidency in Article II of the
Constitution are really rather small. As a result, the role of presidential
interpretation of the vague language of the Constitution is great. Here are
some ways which the powers of the president can be "constructed"
from the vague wording of the Constitution: 1. Extraconstitutional powers there
are two contradictory approaches which may be employed: a) the
federal powers theory
which argues that the states are really the source of national government
powers and that the national government can exercise only those powers stated
in the Constitution which were the powers the states thought were necessary
to give to the national government for their own protection b) the sovereign powers theory argues that the national government
can exercise all of the powers normally granted to a sovereign nation. These
powers include all the powers enumerated in the Constitution, powers granted
through custom and usage of nations, international law, treaties, and
memberships in international organizations Presidents
often argue from the formal powers theory that the other branches of
government are bound by the prescriptions in the Constitution while the
President has a residuum
of powers that
comes from the oath of office and the pledge that the laws be faithfully executed 2. Expansive Rules of Construction If
there is no "plain phrase" easily discoverable in the Constitution,
according to Pious, presidents either use their political muscle or take
advantage of a political vacuum to expand their powers: a)
Textual Definitions attempting
to interpret a power or a restriction in terms of the context in which the
phrase is utilized (Ie., since the impeachment clause phrase "high
crimes and misdemeanors" is so nebulous and the historical context
usually relates to the abuse of power, Presidents argue that they can only be
impeached for corruption and bribery) B)
General Terms general
terms confer the broadest grants of power (Ie., "the executive power" And
"commander-in-chief" ) C)
Functions presidents
can claim a broad base of powers based upon the necessity of performing
certain duties or functions (Ie., the executive power and laws be faithfully executed
clause are interpreted to be broad grants of power) D.
Combining Powers Presidents
have created "resulting powers" by arguing that taking two separate
responsibilities and adding them together creates a new power Presidents
Lincoln and Wilson utilized the "Executive Power" clause and the
"commander-in-chief" clause and the oath of office to expand
presidential powers in war ( E.
Separating Obligations Presidents
have argued that although they have an obligation to see that the laws are
faithfully executed, they don't have an obligation to uphold the laws. This
is particularly true during an emergency when it might be necessary to
disregard a particular law to "protect and defend the Constitution of
the F.
Silences two
contradictory approaches: 1) the delegated powers approach (Taft) argues that the president has
no powers other than those expressly delegated or granted to him in the
Constitution 2)
the inherent power
approach is based
on international law and argues that the president can take any action in the
field of national security that is not expressly prohibited by the
Constitution or the laws of the G.
Inclusions The
powers expressed in Article II are not the sole powers according to the
inclusion argument. Presidents argue that silences about related powers was a
decision made by the Framers not to limit his authority H.
Exclusions The
same doesn't apply to Congress. The President argues that Congress is
excluded from utilizing any power not strictly delegated to it by Article I
of the Constitution I.
Sole Exercise The
powers assigned to him can be exercised by the executive branch alone. This
runs contrary to the conception of checks and balances J.
Concurrent exercise A
second branch of government may exercise a power assigned to another branch
provided there is no constitutional prohibition and there is reasonable
constitutional construction that permits the exercise of the power (This
is the opposite of sole exercise. Sole exercise--Pres you can't have my
powers, Concurrent exercise--but I can have yours) K.
Subordinate Powers Argues
that the President rightfully dominates national security affairs and that
the other branches of government should only exercise their powers in support
of his decisions L.
Coordinate Powers Argues
that the President is not constitutionally bound to support the decisions
taken by another branch that infringe on his constitutional responsibilities M.
Symmetry of Privilege Argues
that any privilege that exempts one branch of government from the checks and
balances of the other should apply to the executive branch. For example, if
the Constitution allows legislative secrecy then there should be executive
secrecy (executive privilege) as well 3. Emergency Powers Argues
that in a crisis the Constitution permits the President to fuse all power in
the executive branch of government (in order to "preserve and protect
the union") 4. Intention of the Framers One
can ascertain presidential powers from the writings of the framers, the
proceedings, the ratifying debates, English constitutional theory, the
debates of the first Congress, etc. 5. Precedent and Usage There
is a "living Constitution" which is the 200 years of history of
interpreting the Constitution which refines and shapes the exercise of
presidential powers which is shaped by presidential interpretations,
congressional views as ascertained from floor debates, litigation and court
decisions, review by political science, law and historical journals These possible interpretations take place in a context of: a)
the relative strength of Congress (the pendulum) b)
the nature of the Supreme Court c)
the nature of the times d)
the nature of competing interest group activity e) the personality of the person who occupies the office
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