Constitutional-Literacy-6

=**Section 6: Powers of the President**=

The Constitution gives us a short list in Article II on the powers of the presidency. The president is commander-in-chief of the armed forces, can require reports from the cabinet, has the power to pardon, can make treaties, appoint senior officials and judges, and reports to Congress yearly on the state of the union, can recommend legislation, can call Congress into special session, and is required to faithfully execute the laws. Can the president send troops to war without a declaration of war? Can the president and executive agencies make executive orders and regulations that have the force and effect of law? Can the president enter into some kind of treaty without the consent of the Senate? Article I Section 8 says Congress has the power to declare war, therefore the answer to the first question is no...but the last time Congress declared war was WWII. Congress has authorized the recent wars that we were involved in, but that's not a declaration of war. Presidents have been able to put the troops into combat without a declaration of war. Article I Section 1 says all legislative (lawmaking) powers are in the hands of the Congress, so the answer to the second question should be no...but presidents issue executive orders, which have the force and effect of laws and the bureaus and agencies often issue regulations that have the force and effect of laws. Article II Section 2 says the Senate must approve of treaties...but the presidents have been able to develop executive agreements with foreign leaders that are like treaties, but don't need Senate approval, although executive agreements are only binding until a new president takes office.


 * Comprehension Question: What are two powers of the president that require the advice and consent of the Senate?**

When the president issues an executive order or when bureaus and agencies issue a new regulation, this is known as administrative law. There are 200 books on executive regulations - 200 books never passed by Congress, even though Article I Section 1 says the legislative power shall be vested in a Congress. Since World War II, presidents have preferred to enter into agreements without the advice and consent of Congress. These are known as executive agreements. This term has no basis in international law. What this means is when a president enters into an executive agreement with a foreign leader, that leader and nation sees it as a binding treaty forever, even though in the U.S. executive agreements are not to be binding from president to president. The U.S. is part of 900 treaties that were ratified by Congress, but over 5,000 executive agreements that were never ratified by Congress. Presidents from both parties have done this and Congress has been okay with that. Why has the Congress allowed executive agreements and executive orders even though both of these require Congressional action? Why would the Congress be okay with the executive branch making regulations that have the force and effect of law?


 * Comprehension Question: Together, all of the presidents have issued over 13,000 executive orders. There are approximately 200 volumes in the Code of Federal Regulations, which contains the rules created by executive agencies under the president. Many of these executive orders and most of these regulations claim the authority of law to directly control private people's actions and property. What provision of the Constitution is being violated?**

An example of what Congress does can give us some insight as to why. Congress passes a law - let's say a law saying they want a clean air policy. Then, the Congress creates broad rules and procedures and leaves the details in the hands of the EPA - the Environmental Protection Agency, an unelected executive agency in the bureaucracy. The role of the EPA should be simply to enforce the clean air policy passed by Congress. However, when Congress passed the law, they left the details of the law in the hands of the EPA. Therefore, the EPA makes the rules that all farmers and businesses are required to obey or be punished for violation of the law - the law that the EPA detailed. See what happened? Congress removed itself from all political liability if the new EPA regulations upset some people. It'll be easier for members of Congress to win re-election (keep in mind the EPA isn't elected - they get jobs through being hired like any of us). A representative or senator can look good by telling voters "I wrote a stern letter of concern to the EPA." No big deal - no consequence - business owners must comply though. The Congress comes out looking like the heroes wanting clean air, the unelected EPA takes the rap and there's no authority except the president over the EPA and a president unfriendly to business wouldn't stop the EPA. Take our coal industry and the EPA regulations that have led to layoffs in the coal industry. Those against these regulations are upset with the EPA, but can't do anything about it. If Congress had passed the laws that in effect the EPA did, members of Congress could be voted out. People can't vote the EPA out of office - Congress avoids responsibility. This is important when you're voting for a member of Congress - hold them accountable.


 * Discussion Question: How can you answer people who argue that if we required Congress to pass all of the laws, rather than allowed administrative agencies to pass regulations, Congress wouldn't have time to enact all of the laws we need?**

What about presidents putting troops into combat without a declaration of war? Article 1 Section 8 gives Congress the power to declare war. Why does Congress allow this? Same basic idea as above. Congress doesn't take the responsibility. If we go to war when a president wants to, Congress can support it when it's going good and look good and criticize the president when it's going bad and STILL look good. This the case in the war in Iraq beginning in 2003. President George W. Bush sent troops into Iraq after Saddam Hussein. Congress authorized going to war, including votes in favor by high ranking Democrats such as John Kerry (who ran against Bush in 2004) and Hillary Clinton. When the war was lasting longer than expected, many of those who voted yes to authorize war became some of the most outspoken members of Congress against the war. When Congress doesn't take an official declaration of war vote, they avoid responsibility. The Supreme Court has not taken up cases on this matter. Lower courts have allowed presidents to commit troops into combat without a declaration of war when cases have come up. Vietnam was allowed since Congress approved the funding. Iraq was allowed since Congress passed authorization for the president to use force. In the court case Doe v. Bush, the authorization for war in Iraq was challenged (this wasn't at the Supreme Court - lower federal court) with a ruling that said no issue since Congress and the President weren't at odds about the war. This ruling makes it seem to be more of a president-Congress problem. This court ruling said it would only be an issue of the president and Congress were at odds about sending troops into combat.


 * Discussion Question: Why is it important for Congress to declare war, rather than for our nation to enter into war solely upon the decision of the president?**


 * Comprehension Question: Since World War II, a number of presidents have sent troops to war (Korea, Vietnam, etc) without making a declaration of war. What provision of the Constitution is violated by this practice even if Congress authorizes the funding and the action?**

Executive orders are issued by the president or executive agencies. In 1952, Youngstown Sheet and Tube v. Sawyer was a court case based on a steel union that was going to strike during the Korean War. President Truman ordered the Commerce Department to seize the mills saying it was necessary for the war effort. The court ruled that this action was unconstitutional. The courts have upheld executive actions with congressional approval. In 1984, an environmental group sued Chevron for violation of EPA rules. The EPA claimed it had administrative discretion. The Supreme Court allowed them to make rules. Agencies are allowed to make rules (based on court decisions) as long as the Congress doesn't prohibit those rules. This means that the Congress can now give executive agencies a lot of power. This is not the original intentions of the Founding Fathers. This makes us less of a republic. Some argue that without the regulations made by executive agencies the Congress would be too busy. However, remember that the Congress has expanded its power through the Commerce and General Welfare Clauses. If Congress acted within the original intent of both of these clauses, it wouldn't be too busy.


 * Comprehension Question: How did the Youngstown Sheet and Tube v. Sawyer decision limit the president's powers?**

Article 2 Section 2 says the president has the power to make treaties on the consent of 2/3 of the Senate. Executive agreements have been upheld by the Supreme Court as well. In 1933, Franklin D. Roosevelt granted recognition to the Soviet Union. In an executive agreement the U.S. agreed to turn over all Russian assets. A Russian insurance company had a large sum of money in a New York bank. The U.S. sued to take that money and give it to the USSR based on the executive agreement with Communist Russia. The Supreme Court ordered the New York bank to send the money to the USSR. FDR's private agreement with the USSR (executive agreements don't come with Senate approval) overrode New York's law protecting the company. The case was United States v. Pink 1942. Ever since then there have been over 5,000 such agreements - no Senate approval.


 * Comprehension Question: What are the "treaties" called by the White House and State Department that are made by presidents without Senate approval? How do these agreements violate the Constitution?**

The Founding Fathers intended us to be a nation of laws, not a nation of men. Our institutions have been steadily growing in power as our individual freedom and our Constitution have been taking a hit.

Presidents don't have constitutional authority to change existing law. However, as America has become more polarized, the public basically developed the position that if it's a policy I like, then I'll justify the policy, but if it's one I oppose then I cite the Constitution! A prime example was in 2016 the Supreme Court looking at President Obama's change to immigration law by executive order in terms of illegal immigrant students. Supporters of the president like the policy. It might be good policy, it might be bad policy, but it changes the actual law. The president is right that the Congress at the time, controlled by Republicans, would never pass what he wanted. The problem for the president is that the law he wants changed was passed by a previous Congress (and signed by a previous president). The Constitution doesn't give the president authority to change it...but the president's supporters do!
 * Discussion Question: Why is it important to stay in line with the Constitution, even if we agree with a policy that the Constitution doesn't allow?**

**Overall: Summarize the main idea of this section and why it's important.**

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