unitary theory of the president

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ARISTOTLE. Government mustMake lawsExecute lawsJudge lawsCan be done by one, few, many. Declaration of Independence. King George III performs all three functionsRefuses petitions to redress grievancesKing

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1. EXECUTIVE BRANCH—PRESIDENT & BUREAUCRACY Perspectives Theory Declaration of Independence Separation of Powers Constitutional Convention Article II

3. Declaration of Independence King George III performs all three functions Refuses petitions to redress grievances King’s character marked by acts “which may define a Tyrant”

4. SEPARATION OF POWERS Guiding principle of American governments “Publius,” No. 47 Accumulation of legislative, executive, judicial powers in same hands is “very definition of tyranny”

5. Philadelphia Convention Greatest focus on representation—states or people? No clear theory of executive power See new text, lesson 7. The following examples of a preference for legislative supremacy can be found in state constitutions drafted shortly after the Revolution: Executive branches were relatively weak and dependent on legislatures. For example, Pennsylvania’s constitution provided for a twelve-member council rather than a governor. Other state constitutions gave legislatures the power to select the governor or to control the governor’s salary. Governors had short terms of office, usually only one year, to ensure that they would not have time to amass too much power. Appointments made by the governor had to be approved by the legislature. Governors played virtually no role in lawmaking and had only a qualified, or limited, power to nullify, or veto, laws that the legislature had enacted. Some states gave their governors a veto power, but the legislatures in those states could override a veto by re-passing the proposed law. MA: Strong executive. Qualified voters elected the governor, though for a short term—one year. The writers of this constitution believed that because the governor was popularly elected, it would be safe to trust him with greater power. To enable the governor to be more independent of the legislature and to allow him to check the legislature’s use of power, the Massachusetts constitution contained the following provisions: The governor’s salary was fixed and could not be changed by the legislature. The governor had the power to revise laws enacted by the legislature, and his revision could be overridden only by a two-thirds vote of the legislature. The governor had the power to appoint officials to the executive branch and judges to the judicial branch. Articles of Confederation, Article IX--See new text, lesson 7. The following examples of a preference for legislative supremacy can be found in state constitutions drafted shortly after the Revolution: Executive branches were relatively weak and dependent on legislatures. For example, Pennsylvania’s constitution provided for a twelve-member council rather than a governor. Other state constitutions gave legislatures the power to select the governor or to control the governor’s salary. Governors had short terms of office, usually only one year, to ensure that they would not have time to amass too much power. Appointments made by the governor had to be approved by the legislature. Governors played virtually no role in lawmaking and had only a qualified, or limited, power to nullify, or veto, laws that the legislature had enacted. Some states gave their governors a veto power, but the legislatures in those states could override a veto by re-passing the proposed law. MA: Strong executive. Qualified voters elected the governor, though for a short term—one year. The writers of this constitution believed that because the governor was popularly elected, it would be safe to trust him with greater power. To enable the governor to be more independent of the legislature and to allow him to check the legislature’s use of power, the Massachusetts constitution contained the following provisions: The governor’s salary was fixed and could not be changed by the legislature. The governor had the power to revise laws enacted by the legislature, and his revision could be overridden only by a two-thirds vote of the legislature. The governor had the power to appoint officials to the executive branch and judges to the judicial branch. Articles of Confederation, Article IX--

6. Virginia Plan National executive—single or plural??? Elected by legislature Take over executive functions performed by Congress under Articles One seven-year term; not re-eligible Member of Council of Revision; negative legislation before becoming law Madison to Randolph, April 1787: “A national executive will also be necessary. I have scarcely ventured to form my own opinion yet, either of the manner in which it ought to be constituted or the authorities with which it ought to be clothed.” Franklin: Ought not receive a salaryMadison to Randolph, April 1787: “A national executive will also be necessary. I have scarcely ventured to form my own opinion yet, either of the manner in which it ought to be constituted or the authorities with which it ought to be clothed.” Franklin: Ought not receive a salary

7. New Jersey Plan Plural executive Elected by legislature Ineligible for second term Removable at request of Congress on application of majority state governors To direct military operations but none to directly command troops

8. Hamilton Plan One person to “execute laws” Elected by electors from districts Life tenure, but impeachable Absolute veto Have “direction of war when authorized or begun” Sole authority to appoint heads of finance, war, foreign affairs Treaty, other appointment power with Senate’s “advice and approbation” To appoint state governors Can be no good government without good executive. No good executive can be established on republican principles. Therefore, elected monarch best alternativeCan be no good government without good executive. No good executive can be established on republican principles. Therefore, elected monarch best alternative

9. James Wilson (Pa.) Characteristics of good executive: Energy Dispatch [efficiency] Responsibility Federalist No. 70: “Energy in the executive is a leading character in the definition of good government.” Essential to protection of community against foreign attacks and to steady administration of laws and protection of property. Ingredients of energy: unity, duration, adequate provision for support, and “competent powers.”Federalist No. 70: “Energy in the executive is a leading character in the definition of good government.” Essential to protection of community against foreign attacks and to steady administration of laws and protection of property. Ingredients of energy: unity, duration, adequate provision for support, and “competent powers.”

10. Roger Sherman (Ct.) Characteristic of good executive: Carry out will of legislative branch

11. Gouverneur Morris (Pa.) Characteristic of good executive: Protect people from legislative branch

12. What we want from executive affects. . . How many chief executives How chief executive best selected Term of office Executive powers Limitations on executive Vote of July 17 resulted in single. 7-3, with Delaware, Maryland and New York opposed. Virginia split. No NJ quorumVote of July 17 resulted in single. 7-3, with Delaware, Maryland and New York opposed. Virginia split. No NJ quorum

13. Compromises Term of office Re-eligibility Selection Qualified veto power Impeachment Need to check vice president; Committee of Detail did most work on presidency James Wilson of Pennsylvania said: "The subject of presidential selection has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide." So intense was the debate over presidential selection that Max Ferrand, in his account of the Constitutional Convention, wrote that all other issues "paled into insignificance in comparison with the problem before the Convention in determining a satisfactory method of electing the executive." Yet, shortly after the Convention, Alexander Hamilton, in Federalist Number 68, described the Constitution’s provisions dealing with presidential selection as "the only part of the Constitution not condemned by its opponents." Need to check vice president; Committee of Detail did most work on presidency James Wilson of Pennsylvania said: "The subject of presidential selection has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide." So intense was the debate over presidential selection that Max Ferrand, in his account of the Constitutional Convention, wrote that all other issues "paled into insignificance in comparison with the problem before the Convention in determining a satisfactory method of electing the executive." Yet, shortly after the Convention, Alexander Hamilton, in Federalist Number 68, described the Constitution’s provisions dealing with presidential selection as "the only part of the Constitution not condemned by its opponents."

14. Article II (executive powers) “Commander in Chief of the Army and Navy. . .when called into the actual Service of the United States” Require opinions of principal officers in executive Departments Grant reprieves/pardons for offenses against U.S. (except impeachment) Make treaties with Advice/Consent of Senate Nominate/appoint Ambassadors/public ministers, Consuls, S.C. Judges with Advice/Consent of Senate Fill vacancies during Senate recess Convene/adjourn Congress or either house Importance of Senate: Each state sovereign with own foreign policy before Convention Hamilton explains in Federalist Nos. 70-77Importance of Senate: Each state sovereign with own foreign policy before Convention Hamilton explains in Federalist Nos. 70-77

15. Article I (executive powers) Veto With statement of objections Qualified

16. Responsibilities State of the Union address Recommend to Congress “Measures as he shall judge necessary and expedient” Receive Ambassadors/public Ministers Take Care Laws be faithfully executed Commission Officers of U.S. Be subject re re-election every 4 years (changed by 22d A.) Take oath

17. Presidential oath “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Oath: “faithfully execute the office of President” (cf. execute the laws). Formulated by Committee of Detail. “To the best of my ability” substituted for “to the best of my judgment and power.” Is the oath an independent source of power? Oath: “faithfully execute the office of President” (cf. execute the laws). Formulated by Committee of Detail. “To the best of my ability” substituted for “to the best of my judgment and power.” Is the oath an independent source of power?

19. Pierce Butler (S.C.) “It had been observed that in all countries the executive power is in a constant course of increase.”

20. Gouverneur Morris (Pa.) “The love of fame is the great spring to noble and illustrious actions. Shut the civil road to glory, and he may be compelled to seek it by the sword.”

21. Edmund Randolph (Va.) Single executive is “foetus of monarchy”

22. Charles Pinckney (S.C.) If President has power over war and peace, U.S. will have worst kind of monarchy: elective one

23. George Mason (Va.) “We are not indeed constituting a British government, but a more dangerous monarchy—an elective one. . . Do gentlemen mean to pave the way to hereditary monarchy?”

24. “Philadelphiensis” “Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kind too--a king elected to command a standing army.”

25. So. . .what are the President’s powers? Constitutional “white space” E.g., signing statements Constitution: must issue when vetoes Since Monroe, have used when signing Dramatic increase since Reagan President Bush: includes frequent references to “unitary executive”

26. Unitary Theory of the President During war, the President cannot be bound by law. Reasons: Commander in chief Inherent power of the President

27. Examples. . . ”The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.” John Yoo “The president has not just some executive powers, but the executive power—the whole thing.” Samuel Alito

28. JOHN DEAN (2002) “. . . “[E]ach national crisis has left the nation a little less democratic than before. . . [I]f a future attack comes, and is devastating, the pressure to resort to constitutional dictatorship may be irresistible.”

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