Rumors persist that President Obama readies executive action
to help illegal aliens stay in the United States, a move contemplated despite midterm
election results. People who revere the Constitution fear he will try to
subvert that sacred charter. It seems, even among those supporting him, such
declarations risk legal rebuke.
Set aside deep concern about constitutional subversions
dating back to both Roosevelts. Executive orders are now the subject of debate
over their constitutionality.
Rereading the Constitution on the legislative and executive
branches of government, Articles I and II, show that the second article on the
presidency is half the length of the first. Article III, listing the powers of
the Supreme Court and “inferior courts” that Congress might create, is fourth as
long as the second.
Most of the words in all three articles are devoted to the
mechanics of setting up those branches; listing of the powers granted are
brief, which is fitting for a document establishing – forming -- a government. “The
executive Power shall be vested in a President of the United States of
America.” (The remainder of Section 1 of the article where the quoted words
appear covers the elector system and how that is to be set up; residential requirements,
minimum age, successor in case of vacancy, compensation, oath text. That much
covers about half of the article.)
ü
Section 2 says the “President shall be Commander
in Chief” of army, navy and state militias when called;
ü
He “may require the Opinions, in writing, of the
principal Officer in each of the executive Departments” on subjects under their
duty;
ü
“Power to grant Reprieves and Pardons for
Offenses against” the U.S., but not for impeachments.
ü
Power with the “Advice and Consent of the
Senate” to make treaties, appoint with two-thirds approval “Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court, and other Officers
of the United States” appointed, under law, to head courts and departments.
ü
Power to fill vacancies that happen “during the
Recess of the Senate” till the next session.
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Section 3 says he “shall from time to time give
to the Congress Information of the State of the Union” and recommend bills “he
shall judge necessary and expedient.”
ü
Power to call special sessions of Congress or
either house and set time for adjournment.
ü
He “shall receive Ambassadors and other public
Ministers;
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“[He] shall take Care that the Laws be
faithfully executed, and shall Commission all the Officers of the United
States.”
(Section 4 provides for the removal of the president and
vice president “from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.” Four of the 26 amendments to
the Constitution affect the presidency by [XX] changing the date of the
inauguration, [XXII] limiting terms, [XXIII] permitting District of Columbia
citizens to vote for president, and [XXV] changing the order of succession.)
No duty is left out of the nine
listed above. A full quotation of Sections 2-4 would not be very much longer.
The point is that the duties of the U.S. president are truly limited
constitutionally.
Duties set out in the 1787 Constitution
for the Congress are just as pithy as for those of the president. But the torrent
of laws (not to mention through the flume of administrative rules) since the
New Deal of FDR is unfathomable. This legal flood has muddied presidential waters
as well as clouding the perception of presidential powers.
Arguing what should have been
since 1787 is futile. But if that charter remains fundamental, opportunity
exists within its basic framework to shape a workable government envisioned by
that oft-quoted preamble: “We the People of the United States . . . do ordain
and establish this Constitution of the United States of America.”
Regardless of one’s political stance, there is no dispute
that President Obama issued a number of executive orders that ignore Congress. Obama
has brandished his willingness to act if Congress won’t. He obviously believes
his goals are right, and he should not be hampered activating his desires.
Congress, despite its dependence upon human weakness and
folly, is there constitutionally to incorporate the will of the country’s
citizens in governing themselves. Theory holds that enough common sense exists
to form government that works. That theory has not been disproved entirely.
Hope is alive although as a one-word campaign slogan hope’s verity has been
stressed.
Paring back presidential powers to those enumerated in the
Constitution will not, probably cannot, be realized. Yet, yearning for each
governmental branch to counter the other two is not beyond reason, not
wild-eyed right wing extremism. Partisanship should be confined to debate over
how best provide wellbeing of citizens. Those very citizens select the men and
women who are supposed to operate under those first two articles of the country’s
basic document. Simple, yes, but ingenious.
