Constitutional Approach

1. Constitutional Approach The Founding Era – problems faced by the Founders. Fear of central power, majority tyranny. Solutions to prevent tyranny. -- system of checks and balances, separation of powers within and across levels of government -- indirect elections (Senate and President) -- varying terms -- extended Republic – vast size of the nation -- power derived from the Constitution

2. Exclusive powers Executive Powers – relatively limited when compared to Congress. Exclusive powers: Veto – question whether or not to even grant a veto power to the president. To be used to correct Congressional errors, rather than political reasons. Appointment and removal powers – early debates over the nature of removal power were key in establishing the understanding of presidential power. Diplomatic power – combination of exclusive and shared power Pardons – also viewed as a more limited power: intended to help put down a rebellion.

3. Shared Powers War powers – Founders: serious role for Congress. But changed from “make war” to “declare war.” Historical evolution of power. Debate today over NSA spying and the authorization of use of force by Congress. Enemy combatants (Hamdi v. Rumsfeld, 2004) Guantanomo (Rasul v. Bush). However the power to suspend habeas corpus for foreigners was reinstated by Congress last year. Lawmaking and administration – some explicitly mentioned shared powers, but then a great deal read into the silences of the Constitution.

4. Implied Powers • Does the President have powers not specifically mentioned in the Constitution? • McCulloch v. Maryland (1819). • Supreme Court in 1890 (In re Neagle), more specifically in the context of executive power. • case involved a presidentially appointed federal marshall who was protecting a judge against threats. He shot and killed an assailant, and was charged with murder • court ruled that president had an implicit power to take action necessary to carry out executive functions.

5. Implied Powers, continued • Constitution is silent on question of whether president can keep information secret from Congress and the public • Specifically allows Congress to keep its records secret, requiring publication “excepting such parts as may in their judgment require secrecy” • Supreme court: “in the area of basic national defense, the frequent need for absolute secrecy is, of course, self evident.” • Implied Powers -- also a source of claim of power for domestic spying.

6. Prerogative powers Prerogative Powers – John Locke. Going past specific grants of power in the Constitution. Abraham Lincoln, “The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. . . . To state the question more directly, are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?” Application to current debates over presidential power and the war on terrorism. Use of prerogative power. Richard Pious: frontlash, backlash, overshoot-and-collapse.

7. Criticism of Prerogative Power • Inconsistent with concept of limited government. • Too broad a grant of power to the President. • Very difficult to specify rules that distinguish valid vs. invalid cases. Does the president simply get to define when his actions are in the nation’s interests? • Most of the time, we simply finesse the question.

8. Other ways of thinking about the Constitution and the presidency Delegated Powers: Congress cannot implement laws, delegates to the bureaucracy. Other legislative functions also delegated: “fast track” provisions on trade treaties. The “National Security Constitution” – Harold Koh. The need for balance between the president and Congress in making national security policy. The “Two Constitutional Presidencies” (Tulis). First power from the Constitution, second from the people.

9. Presidential perspectives William Howard Taft – the strict construction presidency. Teddy Roosevelt, the stewardship presidency. Abraham Lincoln and the prerogative presidency.