Presidential Power, Explained.

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by Bob Greenslade

Let’s cut to the quick. I am sick and tired of hearing people get excited over the Republican presidential debates that seem to take place every other day. For the most part, they are a pathetic joke because they only perpetuate the usurpation of power. The general election debates in 2012 will be more of the same.

Under our system of government, the powers of the federal government and the president are defined and limited by the Constitution. You would never know that listening to the questions and analysis by media pundits. What’s next? Asking the candidates if they can use the powers of the federal government to part the Red Sea or resurrect the dead?

The group discussions that follow are equally troubling because they focus on perceptions and misconceptions concerning the powers and duties of the president. Hasn’t any one of these people taken a moment to review the Constitution before participating in a focus group or have they been so dumbed down by the education system that they are incapable locating the clauses in the Constitution?

Since presidential debates are an ongoing series of job interviews, how can the candidates apply for the office of president of these United States unless they know the 13 powers and duties of the president? If I were running the debates, each candidate would be given a piece of paper at the first debate and asked to write down the constitutional powers and duties of the president. The results would be announced before the first question was asked. Not only would it expose any imposters and tie ignorance to their tail, but it would educate the audience and frame the debate. It would also shine the light of usurpation on the sitting president for his transgressions.

That being said, the 12 original powers and duties of the president are:

1. Signs or rejects (vetoes) all legislative bills passed by Congress. If a president vetoes the legislation and Congress over-rides the veto by a two-thirds vote, the legislation becomes law and a president is powerless to reverse or negate their vote. (Art. I., Sec. 7., Cl. 2.)

Note: It has been asserted that a president can legislate through executive orders. This assertion is false and conflicts with Article I. That clause vests all legislative power in Congress. (See endnote 1.)

2. Is the Commander and Chief of the military forces (Army and Navy in the original text) of the United States. (Can use the military only after a declaration of War by Congress or an act of aggression against the United States by a foreign power or entity. Can also use the military to prevent an imminent attack. Both of these acts would be construed as an act of war against the United States. Thus, a congressional declaration of war would be a formality because the United States would already be at war. After the attack on Pearl Harbor in 1941, FDR appeared before a Joint Session of Congress and requested that body formally declare war on Japan. See endnote 2) The president is also the Commander and Chief of the Militia of the several States when called into the actual service of the United States, by Congress, to execute the Laws of the Union, suppress Insurrections and repel Invasions.) (Art. II., Sec. 2., Cl. 1.)

Note: In Federalist Essay No. 69, Alexander Hamilton compared the war powers of the president, under the proposed constitution, to that of the King of Great Britain. (See endnote 3. See also endnote 4 on the War Powers Act.)

3. Requests opinions, in writing, from the principal officer of any Executive Department of the federal government concerning their duties.

(Art. II., Sec. 2., Cl. 1.)

4. Can grant Reprieves or Pardons for Offences against the United States, except in Cases of Impeachment.

(Art. II., Sec. 2., Cl. 1.)

5. Makes Treaties (with foreign nations) with the Advice and Consent of the Senate. (Only by a vote of two-thirds of those Senators present.)

(Art. II., Sec. 2., Cl. 2.)

6. Nominates for appointment, with the Advice and Consent of the Senate, Ambassadors, public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States. Congress can, by law, vest the President with the power to appoint inferior Officers, i.e., Courts of Law, Heads of Departments, etc.

(Art. II., Sec. 2., Cl. 2.)

7. Can fill Vacancies which occur when the Senate is in Recess and unavailable to confirm an appointment.

(Art. II., Sec. 2., Cl. 3.)

8. Gives Congress from time to time Information on the State of the Union (the Union between the several States), and recommends to Congress for its Consideration such Measures (laws, etc.) as he shall judge necessary and expedient. (Note the use of the word “recommends.” Congress is free to reject his recommendations.)

(Art. II., Sec. 3.)

9. Can convene both Houses of Congress on extraordinary Occasions.

(Art. II., Sec. 3.)

10. Receives Ambassadors and other public Ministers.

(Art. II., Sec. 3.)

11. Takes care that all (federal) laws are faithfully executed.

(Art. II., Sec. 3.)

12. Commissions all Officers of the United States.

(Art. II., Sec. 3.)

13. The president was granted a 13th power and duty in 1967 with the ratification of the 25th Amendment. Section 2 of this Amendment vests the president with the authority to nominate a vice president in the event there is a vacancy in the office of the vice president. Congress then approves or rejects the nomination.

This is the extent of the constitutional powers and duties of the president. A president does not have any constitutional authority over children, education, family values, abortion, or any of the other social issues they constantly discuss in debates and when in office. The legislative and war making powers are vested exclusively in Congress, not the president. All bills raising revenue must originate in the House of Representatives, not the White House. The remaining powers, for the most part, relate to the internal operation of the federal government and have no direct effect on the everyday lives of the American people.

Unfortunately, the chances of a debate being restricted to the constitutional powers and duties of the president are slim to none. The American people have lived all their lives under the federal government’s usurpations of power and demand that it continue. A candidate who ran on a pure constitutional platform would not stand a chance of getting elected because most of the crap the federal government does would go away.

It has been said that a people get the government they deserve. As long as the American people keep begging for more federal control over their lives, presidential candidates will continue to respond with ideas on how to continue and expand federal usurpations of power.

End Notes:

1-Executive Orders and Proclamations.

A congressional committee report has noted: “Because the president has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority.” 85th Congress, 1st Session, Executive Orders and Presidential Proclamations: A study of a Use of Presidential Powers (Comm. Print 1957).

2-The Congressional Declaration of War adopted pursuant to his request stated in part:

“Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.”
Once war was formally declared, President Roosevelt, as stated in the Declaration, received the authority, from Congress, to take control of the military forces of the United States and prosecute the war to its conclusion.

When Germany declared war on the United States three days later, Roosevelt again appeared before a Joint Session of Congress. Congress responded by formally declaring war on Germany. This Declaration gave Roosevelt separate authorization and control over the military forces of the United States. Each Declaration was distinct from the other.

If the president, as commander in chief, had the constitutional authority to initiate war, as some now claim, then there would have been no need for President Roosevelt to have appeared before a Joint Session of Congress on two separate occasions in 1941. He could have simply by-passed Congress by invoking his authority as commander in chief. In addition, if a president has unlimited control over the military forces of the United States, then why did it take two separate declarations of war in 1941 to authorize and direct President Roosevelt to employ the military forces of the United States against Japan and Germany? If the office of the president had independent power over the military, through the commander in chief provision, then President Roosevelt could have authorized and directed himself to employ United States forces against these nations.

3-“The President is to be the commander-in-chief of the army and navy of the United States. 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.”

Since a president acts merely as the highest-ranking admiral or general, he lacks the constitutional authority to determine the nation that war can be waged against. Only Congress can make that determination. This is the purpose of a formal declaration of war. It specifically designates the nation or nations that war will be waged against. Once this is done, the president then receives the power to act offensively and prosecute the war to its conclusion.

During the debates in the Federal [Constitutional] Convention of 1787, it was proposed to grant Congress the power “to make war.” A separate proposal to vest this power in the president was debated and rejected. It was asserted that a president should not have the power to initiate war because he could not be trusted with such a power. The proposal to substitute the word “declare” for “make” was agreed to unanimously. (See Art. I., Sec. 8, Clause 11 for Congress’ power to declare war.)

4-In 1973, over a presidential veto, Congress passed a statute known as the War Powers Act. A provision of this Act purports to give a president extraordinary control over the military forces of the United States without a congressional declaration of war. It should be noted that Congress cannot grant itself or a president extraordinary constitutional powers by statute. It also cannot transfer one of its powers to another branch of government. Thus, it would take an amendment of the Constitution to lawfully change the war and commander in chief provisions of the Constitution.

Bob Greenslade has been writing for www.thepriceofliberty.org since 2003.

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