Lecture #4--Law & Social Policy 2-6-12: The Power of the President

2-6-12

Lecture # 4: Law & Social Policy: (1) The Power of the Presidency & (2) Governance Issues Raised by Tocqueville

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
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Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (181, 288, 304-305), (2) tyranny of the majority (68, 71, 181, 223-224, 287-305, 603,747), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).

The love of comfort has become the dominant taste of the nation. Tocqueville 618.
I have already said enough to put Anglo-American civilization in its true light. It is the product of two perfectly distinct elements which elsewhere have often been at war with one another but which in America it was somehow possible to incorporate into each other, forming a marvelous combination. I mean the spirit of religion and the spirit of freedom. . . . Far from harming each other, these two apparently opposed tendencies work in harmony and seem to lend mutual support. –Tocqueville 55-56.
O tempora, o mores! /O, the times, O, the customs! –Cicero

1. Reading 5 minutes
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.

RE-ELECTION OF THE PRESIDENT
When the head of the executive power comes up for reelection it is the state itself which becomes locked into intrigue and corruption—Desire to be reelected dominates all the thoughts of a President of the United States---Re-election of the President fosters this weakness. Page 159-161.

2. Summary of Lecture #3: The Power of the Legislature (in 250 Words or Less): 10 minutes

It is to a legislature … that almost all the authority of the government has been entrusted. Tocqueville Ch. XV
The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV

In the first class we examined the Power of the People; in the second, the Power of the Judiciary; the third treated the Power of the Legislature and in this, our fourth class, we look at the Power of the Executive Branch. To guides us, we rely upon Tocqueville, The Federalist Papers and Professor Chemerinsky’s text, “Constitutional Law.” The title of our lecture tonight is The Power of the Presidency and Governance Issues Raised by Tocqueville. Next class, the fifth, we will treat Tocqueville’s discussion of social issues.

Summary of Class #3

Tocqueville identifies two main threats to democracy: the subservience of the legislature to the will of the people and the concentration of all other powers in the legislature (p.181). (Book 1, Chapter 8).

The commerce clause is to the legislative branch what the power to declare laws unconstitutional is to the judiciary: a means to exercise, enlarge and extend the breadth and the scope of its reach to meet contemporary requirements of the constitution.

A transformation in the power of Congress occurred after 1937 when the Supreme Court recognized broad congressional authority to adopt laws under the commerce clause, its general spending power and the Reconstruction Amendments (13, 14, 15). This legal change was based on ‘ a perceived need for a strong national government to deal with the problems of the twentieth century….” Chemerinsky, page 238.

But in the last 15 years, the Supreme Court has reversed direction and has begun limiting the scope of federal powers under the commerce clause, the 14th Amendment and the Tenth Amendment. 235 words.

3. Lecture: The Power of the Presidency & Social Issues Raised by Tocqueville. DV: 1467 words. 15 minutes

Article II of the constitution provides that the executive Power shall be vested in a president. The Article then enumerates specific powers of the presidency. Early debate centered on the question as to whether the president was granted certain inherent powers beyond those enumerated. Article I, in contrast, says that “All legislative powers herein granted…’ shall be vested in congress. Article II does not contain the ‘herein granted’ limitation and as a result it was Hamilton’s position that the president has inherent powers and Madison’s position that he does not. It is probably fair to say the judicial decisions have followed Hamilton and Madison—that’s right, they’re on both sides of the issue with no definitive pronouncement one way or another due to the judicial policy of deciding cases on the most narrow grounds available. The landmark case on this issue was Youngstown Sheet & Tube v. Sawyer, when the president in 1952 seized the steel mills to avert a nationwide strike by the steel workers on the grounds it would adversely impact prosecution of the Korean War. Congress took no action. In a 6-3 decision, the Supreme Court rejected Truman’s action. There are 4 different approaches in the opinion to the issue of inherent power. In recent years, there have been broad claims for presidential power to protect national security and fight terrorism. For example, the Bush administration argued it has inherent power to conduct warrantless eavesdropping even though it was in violation of the Foreign Intelligence Security Act. (See page 349 Chemerinsky, footnote 27 for citation to John Yoo approach).

We experienced the same issue when we considered judicial power and learned that certain unexpressed rights and duties could or must be implied in the constitution, including the important judicial right to declare laws and acts and omissions unconstitutional. We learned in the last lecture that the commerce clause of the U.S. constitution was the primary—but not the only—vehicle for exercising expanded congressional powers.

So, let me make an overarching generalization: social policy comes into decisions and actions of the judiciary, the presidency and congress through the commerce clause (and the general spending power and the 14th Amendment), through judicial review based on the constitution (and the evolving standard of decency test of the 8th Amendment) and through the inherent powers of the presidency that are formed and forged in the seething cauldron of social, political and economic change.

Now we turn to the executive branch or, to say more directly what we’re talking about: The Presidency. Hamilton’s first point about the power of the executive branch in Federalist Paper No. 69 is that it will be vested in a single magistrate: one person. Conceivably, executive power could have resided in a council or committee or tribunal. While the decision to vest the office in one person raises the specter of kingship, Hamilton shows the fundamental differences between the presidency and a king, using the king of England as a point of contrast and comparison: The first difference is the tenure both its nature and its duration. The president is elected for 4 years and may be reelected indefinitely (later limited by constitutional amendment). Moreover, the president is subject to impeachment AND prosecution after the term is over under the ordinary course of law. The president has a qualified veto of legislative acts as compared to the absolute veto of a monarch. The president is the commander-in-chief of the army and navy and the militia when federalized but lacks power to raise an army, to declare war and cannot finance and regulate the fleets without congressional authorization. The foregoing are three very substantial impediments to presidential power when compared to the king’s military power.

The president has substantial pardon power EXCEPT impeachment (and this is a fundamental and very important political limitation) but he can pardon treason AFTER conviction. Also, the president has very limited power to adjourn the national legislature, only in the cases of a disagreement about the time of adjournment. The president can make treaties but only with consent of 2/3rds of the senate. Hamilton’s summary of the differences between a king and a president are instructive:

Federalist 69: The president is an officer of the people for four years; the king is a perpetual and hereditary prince. The president is amenable to personal punishment and disgrace while the king is sacred, immune and inviolable. The president has a qualified negative upon legislative acts, the king has and absolute negative. The president has the right to command the military and naval forces but the king has the additional rights to declare war and raise and regulate armies and fleets by his own authority. The king possesses the right to make treaties without concurrence by any other authority; the president has a concurrent power to do so. The king can confer personal and commercial privileges the president cannot. The king can coin money and regulate commerce, declare embargoes, regulate weights and measures, and prohibit circulation of foreign coin. The president has NO spiritual jurisdiction; the king is head of the church. 151 words.


Tocqueville is not so much worried about the presidency devolving into kingship (although he is worried about a future presidential tyranny) as he is worried about the politicization of the office due to the president’s ability to seek reelection. His critique reads like a current lament about presidential politics. The extended reading with which our class began (from pages 158-161, Tocqueville “Re-election of the President’) praises the founders of the country for drafting a constitution that balances the power of the executive branch but then makes a jarring condemnation:

“But when they introduced the principal of re-election, they in part destroyed their work’ (p. 161). “Once the president can stand for re-election…he is but a docile tool in the hands of the majority.’ (P.161).

Tocqueville felt it is impossible for a president to observe the normal course of affairs when his own re-election dominates his thoughts and official actions and policies. When his election is at stake, his private interests transcend the public interest. And while the founders intended that the president guide the people and the legislature, he instead follows them.

Tocqueville, comparing the presidency to the French king, noted certain limitations imposed on the president by circumstance, certain practical limitations on the power of the presidency due to external conditions. These interest us today because the limitations he noted no longer exist. They all deal with the president’s war powers and foreign policy prerogatives. For example, while the president is commander in chief, the army had only 6000 men at the time Tocqueville wrote and the navy had only a few vessels. The United States had no neighbors and was protected by the vast ocean; it had no enemies; this shows, Tocqueville wrote, “…that the practice of government must not be judged by theory.” (P 147). He noted that the president enjoyed almost ‘royal prerogatives which he has no chance of exercising.” (P.147). “The laws enable him to be strong; circumstances keep him weak” (P. 147).


The presidency has changed dramatically since Tocqueville first described it. Today, the president wields great power across a wide spectrum including the ability to set a national agenda, to appoint members to executive agencies and to courts, to conduct a wide range of foreign policy actions, and to control the extensive military resources of the United States.

In each of these areas there has been a transfer of power from the legislative branch to the executive. “Many cultural demands have contributed to this—the president’s power of charismatic leadership, the growth of mass communication with its focus on a single speaker, the growth in international American power, and the deference of the other branches to the executive.

In 1960, Richard Neustadt suggested that students of the executive branch should maintain the difference between the president’s power of personal influence and the powers of the office. This difference is important in understanding the growth of executive power. During the twentieth century, the terms of executive power have not changed very much by the terms of the Constitution—in fact, one of the major changes would be an apparent reduction in the constitutional power of the president by the limiting of the number of terms of office the president can serve. The power of the president has, however, vastly increased in all the areas mentioned above. Presidents are in charge of ever larger institutions of administrative power, more than ever they are expected to be the pilot of national policy, and, moreover, the president is now widely conceived to posses the sole power in foreign affairs, including the ability to make decisions of war and peace. <“http://www.learner.org/courses/democracyinamerica/support/dia_7_readings.pdf> .

The John Yoo memorandum to the President on preemptive war is a modern illustration as are issues surrounding signing statements, recess appointments, refusal to defend selected congressional enactments ( for example, the defense of marriage act).


4. Class Assignments: Federalist Papers, Tocqueville

1) 20. Chris Robert: LEGISLATIVE POWER, fear of: 181, 288, 304-305.(“Justice is the end of government. It is the end of civil society. ”Federalist 51.
2) 1.Brad Corbin: TYRRANY OF MAJORITY 68, 71, 181, 223-224, 287-305, 603, 747.

MOLLY: What moderates the tyranny of the majority? P 305-322, Chapter 8, Part 2.

3) 11. Nicole Maddox: DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought), 747 (public approval).

***The foregoing all interrelated and may be duplicated*****

4) 23. Lu Jessee. MAIN OBJECTIVE OF LEGISLATION 49, 817.


5. Discussion of Reading: Yoo Memorandum and election of the president.



The Following Assignments for Class # 5

2. Sara Thompson: INDIVIDUALISM 683 (isolation), 589

3. Zac Richards: ASSOCIATIONS 219-227, 223, 595-609, 700-702 811

4. Nathan Batey: MATERIALISM 627-628 (read this aloud in class).

5. Natalie Humphrey: FREE PRESS 213, 222, 811-812

6. Darick Crumbly: LAWYERS 307-315, 308, 309, 314

7. Jonathan Raymond: PUBLIC EDUCATION

8. Brandi Melvin: WAR 755-756, 768, 260 (the draft)

9. Jacob Giesecke: NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)

10. Brittany HAMPTON KINDNESS 653 (Death Penalty)

12. Chris Moncrief: DEPOTISM OF THE FUTURE 805-806

13. Stephanie Carr: FEAR OF DISORDER, LOVE OF COMFORT 788

14. Paige Hamby: LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618.

15. Cathy Barnes: WOMEN 687, 692, 696, 700

16. Jillian Smith: UPWARD MOBILITY 637

17. Cassle Kennedy: EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
18. John Brown: RELIGION & LIBERTY: In addition, Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
19. Nicolas Laughlin: MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom.
21.Lauren Reynolds: JUDICIAL POWER 122, 314, 315 812
22. Jasmine Hardin, NEW ARISTOCRACY 645-648
24. Jenn Siewersen, SOURCE OF LAWS 49, 57, 58, 71, 319, 335, 357, 362.
25. Josh Porter: RACE 398-426
26. Molly: MAIN IDEA OF BOOK: 335, 816
Molly: TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812.



They conceived that a certain authority above the body of the people was necessary, which should enjoy a degree of independence in its sphere without being entirely beyond the popular control; an authority which would be forced to comply with the permanent determinations of the majority, but which would be able to resist its caprices and refuse its most dangerous demands. To this end they centered the whole executive power of the nation in a single arm; they granted extensive prerogatives to the President and armed him with the veto to resist the encroachments of the legislature.

But by introducing the principle of re-election they partly destroyed their work; they conferred on the President a great power, but made him little inclined to use it.
Page 159:

“WERE the legislators of the United States right or wrong in allowing the re-election of the President? At first sight is seems contrary to all reason to prevent the head of the executive power from being elected a second time. The influence that the talents and the character of a single individual may exercise upon the fate of a whole people, especially in critical circumstances or arduous times, is well known. A law preventing the re-election of the chief magistrate would deprive the citizens of their best means of ensuring the prosperity and the security of the com-monwealth; and by a singular inconsistency, a man would be excluded from the government at the very time when he had proved his ability to govern well.
But if these arguments are strong, perhaps still more powerful reasons may be advanced against them. Intrigue and corruption are the natural vices of elective government; but when the head of the state can be re-elected, these evils rise to a great height and compromise the very existence of the country. When a simple candidate seeks to rise by intrigue, his maneuvers must be limited to a very narrow sphere; but when the chief magistrate enters the lists, he borrows the strength of the government for his own purposes. In the former case the feeble resources of an individual are in action; in the latter the state itself, with its immense influence, is busied in the work of corruption and cabal. The private citizen who employs culpable practices to acquire power can act in a manner only indirectly prejudicial to the public prosperity. But if the representative of the executive descends into the combat, the cares of government dwindle for him into second-rate importance, and the success of his elec- tion is his first concern. All public negotiations, as well as all laws, are to him nothing more than electioneering schemes; places become the reward of services rendered, not to the nation, but to its chief; and the influence of the government, if not injurious to the country, is at least no longer beneficial to the community for which it was created.” Vol 1, Chapter 8.


Federalist 69:

…In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature…..”