My hope as we continue this series is that you, the reader, are starting to have a picture of what it means when a conservative speaks of a smaller government. There are still many slices of the pie to cut and digest; however, it is imperative to propose solutions instead of just dissenting at every turn. The executive branch is perhaps the most scrutinized branch of our government, next to Congress. The president of the United States runs this branch, but there has been debate over the powers a president has—from executive orders, to sending troops without congressional approval, to pardoning powers. The question over the president’s power has many Americans viewing the president as a kinglike figure, making this position and branch the most powerful of the three—and contradicting the original intent. How did it start, and how did it get here?
The President
The Original Debate
The Founding Fathers didn’t want a king. It makes sense, given that the corruption of the British Crown compelled them to declare independence. That said, given the failures of having a weak centralized government from the Articles of Confederation, the Framers were tasked with avoiding either extreme and finding a middle ground. The debate started off with whether America would have a plural or single executive branch. What’s the difference? In a singular system, when it comes to elections, only the president and vice president are on the ticket for the executive branch, and the president appoints his cabinet members; whereas in a plural system, those cabinet positions would be elected and share the power with the president. Most states in America operate on a plural executive system, Texas being the most common reference. The Swiss Federation operates according to the plural as well. Some Framers who favored a plural system believed it would protect Americans from having the presidency become another kinglike position. This debate was short-lived, as they decided the singular would best suit America’s need for future generations. This didn’t stop the anti-Federalists from scrutinizing the presidency during the ratification process, as many feared that the president would eventually become an elected monarch—which, given the vagueness of its powers, was justified. The responsibilities outlined for the executive branch are the shortest out of three branches, and the most vague. The first section is the most detailed out of the four, as it outlines the Electoral Process. The rest of the article gives power to what the president can do, such as negotiate treaties, nominate ambassadors and judges, fill vacancies in the Senate, veto, fill in other executive departments, pardon, and be Commander in Chief.
The Federalist argued that, contrary to the British Monarch they recently separated from, the president had the other two branches for accountability. Many Federalists were compelled to allow leniency of the language surrounding its powers where necessary. There was no precedent on how a president should run office, yet they wanted a stronger executive branch given the consequences of the Articles. The Federalist convinced enough people to ratify the current Constitution; however, did their reasoning age better than that of the anti-Federalists?
This vagueness has been controversial, as it has allowed a lot of room for interpretation of what a president can do. The powers have steadily increased since George Washington’s presidency, forcing this question. In the Framers’ defense, like Congress, they probably did not envision a president with today’s power. But to play devil’s advocate, are these powers necessary? The most heavily debated issues include: (a) the president’s power to bypass Congress with executive orders, and the volatility of these orders; (b) military matters; and (c) presidential pardon.
Executive Orders
Executive orders are as old as the Constitution itself, beginning when George Washington established his first four cabinet positions. It’s important to note that these orders are not law, but rather an interpretation of already existing law, with the intention of enforcement. The issue, however, is that this power is not directly stated in the Constitution. This has allowed presidents to enable orders that were never in the law books. Obama’s Deferred Action for Childhood Arrivals (DACA), for example, raised this question during and after his presidency—there wasn’t, and still isn’t, any law passed by Congress concerning child migrants who came across the U.S. border illegally. The Supreme Court ruled against Trump undoing this executive order; however, this did not answer the question of whether the order itself was illegal. That is something that has only recently come to light as a federal judge in Texas ruled that DACA was unconstitutional. There were some executive orders that are criticized by conservatives today, concerning whether or not Trump had the power to halt all home payments, and Biden continuing that trend. Then there’s the issue of the volatility of executive orders, as they are only as good as the next president’s agreement with their predecessor.
The solution appears to be amending the Constitution to have more distinctions for the limits of an executive order. The proposals are as follows:
The nature of an Executive Order can only be for the enforcement of existing laws, passed by Congress. Any order that is in effect, that has never been subject to debate or passage by Congress, is thereby no longer valid. Based on the extent of these orders, the legal system has one presidential cycle of four years for a full reversal.
The nature of an Executive order can also be used to enforce explicit constitutional matters, and Supreme Court rulings.
The nature of the reversal of an Executive Order can only be for causes that are not already in practice lawfully, as passed by Congress; or for the practicality of the enforcement, allowing for a partial reversal, unless it is deemed by the Supreme Court that a full reversal must take place.
The nature of Executive Orders cannot deny nor suspend American citizens’ basic rights to life, liberty, and the pursuit of happiness. This includes the individuals of the United States Military.
Military Matters
The last time the U.S. was in a war declared by Congress was after the attacks on Pearl Harbor in 1941. Congress has declared war 11 times since the Constitution was ratified; yet none of them have taken place since World War 2 (WWII). The combat-related events of the Korean, Vietnam, Gulf, Afghanistan, and Iraq Wars were under the pretense of a law that was signed and passed by Congress in 1947, known as the Security Act of 1947. And in theory, any executive action that entailed putting boots on the ground would be within reason—after all, it is only an enforcement of a law that already exists. But is it ethical? There are valid arguments to be made in defense of this extension of power; yet this took away a check in the balance of power, shifting the interests of the people to favor the federal government (also known as the military-industrial complex). The attacks on the Twin Towers propelled George W. Bush to sign the Patriot Act, with the foundation being the National Security Act. This expanded America’s surveillance program to monitor all Americans without a warrant in order to combat terrorism, using military personnel for assistance with this program. Essentially, the president’s powers have extended to using force against their own citizens without due process. That is not ethical and is a flaw of the lack of guidance on the limitations of the presidency. There needs to be a constitutional amendment that protects the power of interest in favor of the people:
Under no circumstances shall the President of the United States have the power to send the regulated militia into a foreign land, unless there is a Declaration of War as established by Congress.
The President shall have the power to readily prepare for war on domestic grounds, and abroad with established bases, so as long as it is with the approval of Congress, and foreign entities. Any new military installation must be negotiated with the foreign leader and then get approval from Congress, in the same manner the President would in the case of a treaty.
The President shall not have the power to establish cabinets that violate the Bill of Rights. The President shall not, under any circumstances, use the regulated militia or federal agency against an American citizen.
Presidential Pardon
What should be the legal basis of a Presidential Pardon? This is another matter that lacks clarity in the Constitution—it’s purely subjective, and based on the current president’s sentiment about the individual and situation. Of course, the president can only grant pardons so as long as jurisdiction allows; but if the person is within federal jurisdiction, then what can be an objective standard for pardon? The Framers had mixed feelings on this, but ultimately decided it was needed for a check of balance for the judiciary system, as expressed by Alexander Hamilton: “Without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Still, it doesn’t hurt to curtail this power by giving further guidance as outlined by a possible constitutional amendment:
If the nature of the crime entails an American citizen practicing their constitutional right, as protected by the Bill of Rights, the President has the grounds for a pardon. This includes any crime that exposes constitutional violations being committed by both federal and state governments.
If an American citizen’s due process has been violated, with clear evidence of prejudice against the defendant, the President has the grounds for a pardon. The evidence must be available for public consumption before such action is taken.
If there are crimes being committed as a result of domestic tension between the federal and local governments, the President has the grounds for a pardon.
If there are crimes committed abroad that do not violate the laws of the United States, though the American citizen may be subject to foreign jurisdiction, the President shall have the basis for a pardon upon the return of the citizen on American soil.
In times of foreign conflict or war, the President shall have the grounds for a pardon of any member of the Armed Forces.
In times when an elected official or appointment on a state or federal level has committed a crime against the United States of impeachable standards, the President shall not have the grounds for a pardon, to include the Presidential position itself.
Conclusion
The Federalist and the anti-Federalists were right. The president does need leeway to enforce the laws in place; however, because of the lack of guidance in the final ratification, the president has been elevated to a kinglike position. Some may see these proposals as still too vague, and there may be those who believe some of these are too strict. It’s understandable why the Framers made the Executive Branch short in describing its roles, because it’s the most complex. The nature of the president’s powers is what appears to be missing. There could be more—but maybe some think these proposals aren’t radical enough, and say America needs to do away with the singular system and replace it with a plural executive branch. The main advantage of the singular, however, is that it allows the president to have people who support their agenda. The continuity is needed; thus I personally favor the singular for the federal government, whereas the states can have the plural. Regardless, this is a foundation to begin rethinking what a smaller government entails. What do you think?
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