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  • How Much Power Does the President Have?

    Posted by Michael Hiteshew on April 19th, 2016 (All posts by )

    Can the president decree that a US law be ignored or even reversed if it advances his party’s political agenda? If so, is that not legislating from the Oval Office?

    The US Constitution, Article I, Section I:  All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

    If the president can grant deportation relief to 5 million immigrants here illegally – for whatever reason – what law cannot be reversed? What law has any meaning?

    Supreme Court justices seem divided on Obama immigration actions

    And what does it say about the current ideological makeup of the court that half the justices think this is a valid and legal course of action for a president? And assuming that Hillary is our next president and will appoint at least one far left justice, what is the likelihood the Constitution means anything at all anymore? Are we moving into the endgame, the first tentative steps of dictatorship, fully blessed and sanctified by the US Supreme Court?

     

    15 Responses to “How Much Power Does the President Have?”

    1. Subotai Bahadur Says:

      The fact that the Supreme Court is already widely seen as being split purely based on political party lines, and there are votes and public statements that can be pointed to on specific issues that can be cited to justify that belief, would indicate that the pretense of a rule of law is gone. And with it the Constitution in practice. It still exists in theory, but it seems that electoral politics alone is not capable of, and will not be sufficient to restore it.

      I would note that the perceived split is 4-4. There is nothing to indicate that Chief Justice John Roberts will not do anything that is not his presidential master’s bidding. Thus making it 5-3.

    2. Mike K Says:

      Scalia said, years ago, “if the Court acts like politicians, expect to be treated like politicians.”

    3. dearieme Says:

      Somebody has got the dirt on Mr Roberts.

    4. Robert Schwartz Says:

      In 1689, the English Parliament adopted the Bill of Rights to correct the perceived abuses of King James II, who had been deposed in the Glorious Revolution. That law, is the foundation of the US Constitution, and its provisions are echoed in many clauses of the Constitution as Amended by the first ten Amendments (which is why they are called the “Bill of Rights”). The issue of executive discretion was expressly address by the English law:

      * * *

      Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

      By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;

      * * *

      the said Lords Spiritual and Temporal and Commons, … for the vindicating and asserting their ancient rights and liberties declare

      That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

      That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

      * * *

      http://avalon.law.yale.edu/17th_century/england.asp

    5. Robert Schwartz Says:

      For an in depth discussion of the place of Executive discretion in our Constitutional order, I highly recommend:

      “Is Administrative Law Unlawful?” by Philip Hamburger

      A shorter introduction to Professor Hamburger’s argument is an excellent talk he gave at the Cato institute in Washington:

      “Is Administrative Law Unlawful?” Book Forum June 5, 2014 video and podcast:

      “When law in America can be made by executive “pen and phone” alone — indeed, by a White House press release — we’re faced starkly with a fundamental constitutional question: Is administrative law unlawful? Answering in the affirmative in this far-reaching, erudite new treatise, Philip Hamburger traces resistance to rule by administrative edict from the Middle Ages to the present. Far from a novel response to modern society and its complexities, executive prerogative has deep roots. It was beaten back by English constitutional ideas in the 17th century and even more decisively by American constitutions in the 18th century, but it reemerged during the Progressive Era and has grown ever since, regardless of the party in power. …”

    6. Michael Hiteshew Says:

      Excellent and appropriate Robert. Thank you.

    7. a6z Says:

      The Constitution isn’t quite a dead letter yet. But you can hear the fluttering wings of the angel of death.

    8. Michael Hiteshew Says:

      I recommend the video lecture/Q&A by Professor Hamburger that Robert linked above, Is Administrative Law Unlawful? He makes a very good case that it’s explicitly prohibited by the Constitution, and that much of what currently passes as administrative and executive law is simply an exercise of arbitrary absolute power.

    9. William Newman Says:

      Macaulay’s _History of England_ (free online at Project Gutenberg) is a fascinating book both for its intended historical content (including many many things on the controversies and conflicts leading up the Bill of Rights) and for its accidental time-capsule-ness as a mid-19th-century text written by a high-ranking member of the establishment of the time.

    10. Robert Schwartz Says:

      I think this colloquy shows how little most Americans know about the English background of the Revolution and the Constitution in American History. I have a Masters in American History. I did not understand the importance of the English Civil War and the Glorious Revolution to American Constitutional History, until I read a lot of English History on my own in later years.

      It is one of the three great failings of the academic history profession in the US. For the record, the other two are an inability to understand the importance and power of religious world views, and utter ignorance of the mechanics and economics of trade and finance. Now of course, they have fallen into the pit of Social Justice from which they will never emerge.

    11. dearieme Says:

      I enjoy the Claim of Right Act of the Scots Parliament in 1689, particularly this bit:

      “Whereas King James the Seventh … [did] invade the fundamental constitution of this Kingdom and altered it from a legal limited monarchy, to an arbitrary despotic power …”

      That suits several of your Presidents, I’d guess.

    12. JohnTyler Says:

      a perfect example of why the Constitution must be amended so that a 2/3 vote of both houses of Congress can reverse any Supreme Court decision or a 2/3 vote of the state legislatures can overturn any Supreme Court decision and ANY law passed by the US Congress.

      Congressional or States, votes overturning SCOTUS decisions would not have a statute of limitations, nor would States’ votes overturning laws passed by the US Congress.

      The founding fathers never envisioned that the justices would be merely politicians wearing black robes and making decisions totally ignoring the US Constitution or worse, totally contrary to the plain and obvious WORDING of the US Constitution.

    13. Mike K Says:

      “I did not understand the importance of the English Civil War and the Glorious Revolution to American Constitutional History”

      Did you read Michael Barone’s book ? I assume you did.

    14. brer rabbit Says:

      Give Obama a brake. He can’t enforce every law there is … there are too many for that!! So he picks and chooses which laws deserve enforcing.

      Good grief. Its not as tho he promised to enforce ALL the laws. That is stoopid.

    15. Name Name Says:

      Where is the book about how game designers and dungeon masters can set up and execute a set of rules that satisfy all participants?

      Are there any games that follow Robert’s Rules?