I, like many people in this country, have become concerned with the expansion of Presidential power that has accelerated in the past few months. I was taught in High School that there were three equal and separate branches of the government, and that the purpose of that design was to create checks and balances on the power of each branch. But now I hear more and more voices claiming that the Presidency has inherent authorities that supersede those of the other branches.
I am not an attorney; I am certainly not a constitutional scholar. I am just an observer.
The justification for these expanded Presidential actions seems to be an interpretation of Article II of the Constitution. Mr. Trump himself has said: “And then I have an Article 2, where I have the right to do whatever I want as President.” Even this week he said: “I have the right to do anything I want to do. I am the President of the United States.”
I have spent some time trying to understand this issue from a lay standpoint, and more importantly, to try to reconcile it with what the Framers may have understood when authoring the US Constitution. Here are some of my thoughts.
THE UNITARY EXECUTIVE
I have read, with interest, the debate over the powers of the Presidency.
Article II of the Constitution, labeled “Executive Branch”, states that “the executive Power shall be vested in a President of the United States of America”. I have listened as people have argued that this clause specifically empowers the President with the ability to manage virtually all things that fall within his sphere of influence.
The argument that the President, as Chief Executive (a term that IS NOT found anywhere in the US Constitution) has the ultimate authority over all individuals and departments which report to him is referred to as the Unitary Executive Theory. It compares the powers of the President to those of other Executives in companies in this country, today. Those Executives have the power to control spending, marketing, sales, contracts and all other aspects of the company. Their legal departments are tasked with defending the company and finding legal rationales to support their policies. Their security departments are tasked with protecting them. People who serve at the Company’s President’s pleasure can be replaced by that President if they do not implement his/her policies and visions.
The President of the company is answerable only to the Board of Directors, if one exists.
If you use this model to describe the President of the United States, you conclude that he/she has the inherent power to decide what any department under his/her control does including the DOD, the DOJ, the DOE, the NIH, the Fed., etc., etc. He should have the power to choose to hire or fire whomever he chooses, when and whether to spend funds allocated, or to withhold those funds if he feels the project is not consistent with his vision.
In the US the de facto board is the citizenry, which meets quadrennially to consider whether or not to replace the current President.
Now, let’s look at this analogy, as it is used, to provide these extraordinary powers to the President, making the Executive Branch the first among equals of the three branches delineated in the US Constitution.
Let’s take a closer look at the Constitution’s wording.
EXECUTIVE
Article II, as quoted above, speaks about the “executive Power”. Understanding the Constitution requires noting that the word “executive” is NOT capitalized, but “Power” IS. This is a critical distinction and is based on the debate at the time. Hamilton argued for a strong “Executive” who would have great power; but the majority of the Framers, having fought to free the new country from the autocratic rule of the King of England, were apprehensive about giving too much power to a head-of-state. This should inform us of the intent of Article II. We did not create an Executive with power; we created an executive Power to be administered by the President. This power is restricted to executing and administering the laws and regulations passed by the Legislature.
You may say: “this is a distinction without a difference.” But I do not agree. If you read the phrase as an Executive power, then it implies that the President who is the Executive has the power. However, if you read it as executive Power, then that implies that those powers are allotted to the Executive Branch, to be administered by the President, distributed over the several executives of different departments. I will return to this explanation below when I discuss the choice of the term “President” to lead the Executive Branch.
During the pre-Revolutionary Period, under British Rule, the Executives in each colony were appointed by the British Crown, and their powers were extensive and rooted in the King’s authority. The Founding Fathers wanted to be sure that the new country that they were creating would NOT follow that model.
The clear intent of the Constitution was to limit the power of the Article II Branch by requiring it to follow the laws and regulations enacted by the Legislature, not the dictates of any supreme ruler, and to be answerable to the courts, which would be the sole interpreter of the meanings of those laws and regulations.
PRESIDENT
What about the term “President”? The term comes from the Latin, “prae”, before, and “sedere”, to sit. The same roots that create the word “preside”. The term had been used until and during that period to refer to someone who “presided over”, or chaired a meeting, such as the President of the Continental Congress. The term “President” was specifically chosen by the Framers BECAUSE it was more ceremonial than other potential terms and was specifically adopted to restrict any individual from accumulating too much power.
Understanding what the Framers meant when they chose the term “President” has great import to the discussion of executive Power. The President, as the “chair” of the Executive Branch has the executive Power vested in him. When you understand his role as an administrator of the Branch, you understand that his responsibility would be delegating those Powers to those under him.
COMPANIES AND CORPORATIONS
An important thing to recognize in the Unitary Executive analogy is that the foundation upon which that analogy is built is the modern Company. We consider a Company to be a model for the Federal Government. But during the Revolutionary Period, the Founders and the Authors of the Constitution had a distinctly different understanding as to what was meant by a “Company”.
Today we can create a company by simple registration processes, and anyone can own a part of the company through the purchase of shares of stock. However, during the Revolutionary Period, companies could ONLY be formed by State Legislatures, and even then, ONLY for a specific purpose and ONLY for a limited time period. Companies were formed primarily for a specific public benefit, such as building a road or creating a bank. These companies were small, and shareholders were local individuals who participated in the operations. They were prohibited from making political contributions or lobbying and could not hold stock in other companies, so mergers and acquisitions were extraordinarily rare.
It wasn’t until 50 years after the US Constitution was signed, in the19th Century, that Supreme Court decisions allowed for the expansion of companies and corporations to be formed without State control.
So, the authors of the Constitution had no concept of what we consider a Company, and therefore, had no concept of the role of a President in such a Company.
Likewise, a “Corporation” would have meant a town or a university. The term would not have been applied to a business.
Appreciating what the Authors of the US Constitution understood of when they thought of what a “company” was, what an “executive” was, and what a “President” was, in my opinion, should require us to reject the “Unitary Executive” rationale.
If we truly want to use an “originalist” version of the Constitution, or an historically correct version, we need to resist Presidential overreach; and thus, it becomes the responsibility of the Congress and the Courts to enforce what the Framers intended.