EXECUTIVE BRANCH—PRESIDENT &

BUREAUCRACY• Perspectives

– Theory– Declaration of Independence– Separation of Powers

• Constitutional Convention

• Article II

ARISTOTLE

Government must

• Make laws

• Execute laws

• Judge laws

Can be done by one, few, many

Declaration of Independence

• King George III performs all three functions

• Refuses petitions to redress grievances

• King’s character marked by acts “which may define a Tyrant”

SEPARATION OF POWERS

Guiding principle of American governments

“Publius,” No. 47

Accumulation of legislative, executive, judicial

powers in same hands is “very definition of tyranny”

Philadelphia Convention

Greatest focus on representation—states or people?

No clear theory of executive power

Virginia Plan

• National executive—single or plural???

• Elected by legislature

• Take over executive functions performed by Congress under Articles

• One seven-year term; not re-eligible

• Member of Council of Revision; negative legislation before becoming law

New Jersey Plan

• Plural executive

• Elected by legislature

• Ineligible for second term

• Removable at request of Congress on application of majority state governors

• To direct military operations but none to directly command troops

Hamilton Plan

• One person to “execute laws”• Elected by electors from districts• Life tenure, but impeachable• Absolute veto• Have “direction of war when authorized or

begun”• Sole authority to appoint heads of finance, war,

foreign affairs• Treaty, other appointment power with Senate’s

“advice and approbation”• To appoint state governors

James Wilson (Pa.)

Characteristics of good executive:

Energy

Dispatch [efficiency]

Responsibility

Roger Sherman (Ct.)

Characteristic of good executive:

Carry out will of legislative branch

Gouverneur Morris (Pa.)

Characteristic of good executive:

Protect people from legislative branch

What we want from executive affects. . .

• How many chief executives

• How chief executive best selected

• Term of office

• Executive powers

• Limitations on executive

Compromises

• Term of office

• Re-eligibility

• Selection

• Qualified veto power

• Impeachment

Article II (executive powers)

• “Commander in Chief of the Army and Navy. . .when called into the actual Service of the United States”

• Require opinions of principal officers in executive Departments

• Grant reprieves/pardons for offenses against U.S. (except impeachment)

• Make treaties with Advice/Consent of Senate• Nominate/appoint Ambassadors/public ministers,

Consuls, S.C. Judges with Advice/Consent of Senate• Fill vacancies during Senate recess• Convene/adjourn Congress or either house

Article I (executive powers)

Veto – With statement of objections– Qualified

Responsibilities

• State of the Union address• Recommend to Congress “Measures as he shall

judge necessary and expedient”• Receive Ambassadors/public Ministers• Take Care Laws be faithfully executed• Commission Officers of U.S.• Be subject re re-election every 4 years (changed

by 22d A.)• Take oath

Presidential oath

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”

Concerns about executive power. ..

Pierce Butler (S.C.)

“It had been observed that in all countries the executive power is in a constant course of increase.”

Gouverneur Morris (Pa.)

“The love of fame is the great spring to noble and illustrious actions. Shut the civil road to glory, and he may be compelled to seek it by the sword.”

Edmund Randolph (Va.)

Single executive is “foetus of monarchy”

Charles Pinckney (S.C.)

If President has power over war and peace, U.S. will have worst kind of monarchy: elective one

George Mason (Va.)

“We are not indeed constituting a British government, but a more dangerous monarchy—an elective one. . . Do gentlemen mean to pave the way to hereditary monarchy?”

“Philadelphiensis”

President as “military king”

“Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kind too--a king elected to command a standing army.”

So. . .what are the President’s powers?

• Constitutional “white space”

• E.g., signing statements• Constitution: must issue when vetoes• Since Monroe, have used when signing• Dramatic increase since Reagan

» President Bush: includes frequent references to “unitary executive”

Unitary Theory of the President

During war, the President cannot be

bound by law. Reasons:

Commander in chief

Inherent power of the President

Examples. . .

• ”The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.” John Yoo

• “The president has not just some executive powers, but the executive power—the whole thing.” Samuel Alito

JOHN DEAN (2002)

“. . .

“[E]ach national crisis has left the nation a little less democratic than before. . . [I]f a future attack comes, and is devastating, the pressure to resort to constitutional dictatorship may be irresistible.”