Of all the arguments in the articles and the podcast, describe one arguing in favor of a strong executive and one arguing against. Then say something about what you think are the strengths and weaknesses of these arguments.
Week 9: The Scope of Executive and Judicial Power
Published
Constitutional Law (Powers) Spring 2019 
One argument for a strong executive is original intent of the framers of the constitution. Even though many argue that the farmers actually feared an abusive federal government , they did indeed also feared a weak executive who can not properly hold the republic together. An argument against strong executive is the broad interpretation of presidential powers by the unitary executive theory. This theory expands the president’s power in times of crisis, much like President Bush expansive of his powers after 9/11. This theory lacks any constitutional backing even when some may argue that its rooted in the vesting clause of article 2. This argument soley just establishes the position of the president not any powers but it been used to expand the powers of executive on numerous occasions.
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Thanks, Sarah. This is a clear summary. We’ll say more in class
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The powers of different branches of government has always been a reoccurring issue, with scope defining the strongest part of government. In theory all 3 branches are balanced, but it could be argued that resources have been accumulated under the executive on a grand scale. Divoll takes a poke at the Unitary Executive Theory, detailing the fallacies which to explain the unlimited powers of the president. Political theorist have spoken on Presidential power relying heavily on historical observation than legal precedent of a Presidents’ use of power. The comparative realities of Lincoln and Wilson, only show their actions by illuminating defiance of the judiciary and the the use of their war powers. Historical context is important but should not be motivated through moral attitudes of Presidential actions. The powers of a President seem unlimited to the spoke in which they are able to conduct themselves in different spheres of influence and to have control of the functions of the state.
The original intent of the framers was to have a strong executive branch. Alexander Hamilton, one of the author of the Federalist Papers made a point to ratify the U.S. Constitution with those men in congress agreeing to have an energetic executive. The Presidency has the powers to become the unifying voice of a nation as well as its representative to the world community. The different cabinet positions of the executive are all meant to have a functioning government with internal and external functions. The article acknowledges the framers intent to have a centralized government to not only unite states but to form a nation. The argument does not indicate the balance of power, with President’s ignoring the Supreme Court after a decision, with no consequences for their actions. Also, the fear is the military might under one commander in chief who has war powers in their discretion.
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Jorge, I’m glad you picked up on the question of historical versus legal precedent. We will discuss this further in class. Then, on the question of original intent, it is somewhat confusing: What the hell does Hamilton mean by “energetic executive”? One who would be able to fight wars and respond to crises, or one who could unilaterally spend money and issue regulations? Gorod quotes Federalist #70 here, which is very widely referred to by proponents of the unitary executive theory, but we also know the limitations of the federalist papers. We’ll try get to the bottom of some of these questions in class.
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Many proponents of the strong executive point to the need for a strong executive to be able to act unilaterally in response to an emergency and/or immediate threat to US security. But not since President Lincoln’s response to succession and what amounted to a foreign invasion of US soil has there been a direct, immediate threat to US sovereignty. The current concept of the role of the President as Commander in Chief and directing troops to combat-ish areas dates only back to Truman’s approach to the Korean invasion – which wasn’t even a true threat to US security or interests but was a Korean civil war.
And this illustrates the dangers of an executive with excessive power. Wars have been fought, young men and women killed and maimed, lives destroyed, civilian losses, economic destruction, and more because instead of Congress wielding the responsibility of justifying use of US military forces, the President has usurped this power and uses it to his own political gain. Stopping short of an isolationist approach to foreign affairs, what needs to be restored is the requirement that wars (all armed conflicts the US engages in) be supported by the people, not decided upon unilaterally. If there is information that justifies the action, then the US people should be privileged to that information and allowed to make that decision as a people.
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I look forward to reading your paper on Korea, John. Strong points here – although much of our discussion in class will hold fire on war powers till next week. Nevertheless, we might ask whether the expansion of presidential power over war and foreign policy has in some way bled into other areas of lawmaking. I think Zelizer hints at this argument in the podcast…
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An argument for strong executive authority is in times of emergency, the president needs to act forcefully and swiftly. To support this, the idea that the executive cannot rely on Congress to act can be cited. The polarization and voting system that existed and continues to exist within Congress delays a swift reaction. For example, FDR used thousands of executive orders to address economic crises (he did still receive permission from Congress sometimes). Of course, a president may abuse the use of executive orders or other delegated powers. For instance, President Trump recently declared a state of emergency in response to Congressional refusal to spend taxpayer dollars on his border wall. In doing so Trump has abused his power since the US is not under direct threat from these “illegal aliens”. Furthermore, Trump promised Mexico would pay for the wall at the start of his presidency, yet, he wants to seize money from the military construction account, Congress (i.e taxpayer dollars!) and other sources. Of course, I could go off on a tangent, saying that amount of money could be used for programs more beneficial to the American people, but that’s an argument for another day.
An argument for a weak executive can be traced back to the anti-Federalists. They believed that in having a weak executive, it would prevent them from becoming tyrannical. The strengths of such an argument are the idea Congress is the main branch that represents the American people proportionally and also has powers to “check” the president. For example, they can impeach the president. To rebut such an argument the Articles of Confederation can be cited. The first constitution failed in part because a national leader with delegated powers did not exist.
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Thanks Sarah-Hannah – you’ve summarized the arguments in favor of executive power very nicely indeed. It seems like you’re a little bit torn on these: on the one hand seeing the need for actions like FDR’s, but on the other baulking at Trump’s use of emergency powers. Let’s see if I can get you to pick a side in class!
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A concept that was introduced in We The People was: Congressional surrender vs. presidential usurpation. I believe that this is a throughline for this week’s readings. The President has a history of rising to the demands of his office, and I believe that that is the primary reason that we see the expansion of presidential powers. The issue here is that the President will often see the need for powers and action in places where others may disagree with him. Polk and the Mexican American war come to mind. Yes, Polk was a powerful president who expanded presidential power, but were his goals, in line with the needs and wants of the people, or even moral? I personally think not. This trend has continued with massive military exploitation across the globe by presidents who see issues that we may or may not see. And in the case of #45, issues that even his intelligence agencies don’t see. Divoll seems to side with presidential usurpation. He points to the justifications of President Bush’s actions post 9/11 as a reference to the abuse of the unitary president concept. Divoll describes the unitary executive theory as “circular and self-serving” while citing the Vesting Clause of Article 2. And despite the fact that the unitary executive theory bases itself on making the Executive the interpreter of the constitution, they do not base their arguments on legal precedent, but on a historical one. This is counterintuitive, but they are forced to make the most convincing argument that they can, even if it is essentially inconsistent with their stance.
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Adam, I think you’re right to pick up on the We The People “throughline.” The follow-up question would be (especially to Posner): Even if we are talking about congressional surrender, should we still be concerned? Some of the Bush-era conservatives were in a tight spot here, because they’ve long bemoaned the delegation of congressional powers (c.f. our friend Hadley Arkes), but weren’t wanting Bush’s hands to be tied. The non-delegation doctrine is not dead!
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One argument in favor of a strong executive as discussed in the We The People podcast is the need for action and getting things done at the executive level. A powerful executive allows real action to occur because it provides the avenue for the President to act in response to an emergency or crisis. Congress is often very slow moving and sometimes the President needs to take advantage of the office in order to get something done that otherwise would not get through a partisan Congress. Although sometimes we may have bad Presidents (like now) if we divorce the actual person from the office we can see the advantages of a powerful executive making this a strong argument. Unilateral action is sometimes not only justified but needed to respond to real pressing problems the country is facing. Also, a lot of really good and innovative actions have resulted from the executive branch, for example, the Clean Air Act and we can’t argue to diminish the executive branches powers simply on partisan grounds. One weakness is that the flip side can be argued about Presidents taking advantage of the office to appeal to a minority group of people and negatively impacting the country. We see this happening with Trump and his push to declare a National Emergency to fund his wall.
One argument against a strong executive is that the President is not supposed to provide final interpretation of the Constitution and act based on what’s called the Unitary Executive Theory. This essentially characterizes the President as having unlimited power and using it too broadly. The argument given by the author is strong because of the example provided of President Bush who acted in this fashion in the name of national security after 9/11. One weakness that still exists is that although the President is afforded some great powers, Congress will always remain a direct check on the branch with the power to impeach.
-Rumer
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From all the arguments in the articles and the podcast, it clearly shows show the executive branch has become more powerful over the years. A strong argument in favor of a strong executive was that it was the intentions of our Founding Fathers for it to be that way. Our Founding Fathers thought that the president might sometimes need to take unilateral action. I see this as a weak argument because President George W. Bush had made an impulsive unilateral declaration of war against Iraq and had done so unconstitutional. He did it illegally and I can’t see this approved by our Founding Fathers.
An argument made against this is that it depends on the individual in office and that the executive powers are a bit vague (protect liberty, holds legislative in checks, and executive authority resides in the president) and left to others to interpret the meaning of those powers and exercise to their own use while in office. In the podcast, we are given a great example of this in which President Roosevelt “reimagined what the institution was and made it somewhat more visible to the public on the executive powers.” Presidents throughout history made the executive branch more stronger and expanding their powers. Some may argue that parts of those powers were given by parts of American citizens for allow such powers to expand over the years. We get bad presidents, just like we currently have now. Legitimizing presidential command requires explicit congressional sanction and Congress should constrain the president’s powers when needed.
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For: one argument for having a strong executive power is that the founding fathers, in fact, did want a strong unified government, they feared on having a president that was too weak to lead and enforce the country. Also after the ratification of the thirteen colonies, the framers did want to create a strong executive branch led by a single person as they had already experienced what having a weak national government was like, which gave too much leeway and power to the states. This is why the constitution among other things gave the president a number of powers and duties. Id say this argument is only valid if your a strong constitutionist/federalist or believed in what the framers wanted id also say that with this type of viewpoint it could tricky as William Howard Taft was considered a constitutionalist and his view was that a president could only do what exactly the constitution stated but someone like president Roosevelt and Wilson believed that they could do anything that was not explicitly stated not to in the constitution
Against: an argument here is that the government has a set of checks and balance to prevent one branch like executive power from having too much power. John Yoo and the Bush administration tried to push the idea that during a national security, that the president is too powerful as the person can ignore congresses wishes and the courts as well and has the ability to not follow laws passed by Congress but in truth all they are doing is manipulating the narrative of what is called veto power which was granted by the framers.
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This is spot-on Javier, thanks! I think you’ve described the argument “for” particularly well, as it’s clear that even though the founders wanted constraints on executive power, they didn’t want the chaos that existed before. Of course, what they’d say about the “unitary executive” is another, thornier question
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One argument that was made against a strong executive is the debate upon the Unitary Executive Theory which justifies unlimited presidential powers. This comes into play with previous president Bush’s presidential powers exercise after September 11th, 2001. The argument that this notion is just a theory since it has not been considered valid under the Supreme Court or the Constitution, opposes a strong executive argument. In fact, the Supreme Court has rejected this idea of unlimited presidential powers. For example, the Morrison v. Olson case rejected what the Unitary Executive Theory stands for, and emphasized this by the “removal power” of the President (Divell, Unitary Executive Theory, page 151). Hence, this favors to oppose a strong executive power because they may take advantage of this and utilize this power in an unlimited way, which is even opposed by the Supreme Court.
One argument in favor of a strong executive power is that Congress allows the President to obtain these powers, and a stronger executive calls for quicker action to be made. For instance, when Roosevelt was in office there were economic and military emergencies. Roosevelt was able to make multiple executive orders, because Congress was often slow and lacked the skill to encounter these conditions (Is the Presidency Too Powerful, 2019). Thus, this favors a strong executive power because Congress gives the president all this power, and they are quicker in confronting these situations.
Some strengths of these arguments is that they both incorporated a counterclaim, and how the opposing side may be viewed. They also made sure to emphasize their main idea by not just with logical reasoning but with historical evidences as well; such as, examples of previous executive powers uses and court cases. Some weakness may be that, in some ways they can be more direct and firm towards the idea that they are siding with.
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In the TRANSCRIPT: EIGHT THINGS I HATE ABOUT THE UNITARY EXECUTIVE THEORY’, the author Vicki Divou explains the two arguments for a strong and weak executive. In the first argument, Divou says “”The framers considered having the Executive Branch consist of a committee, but they decided against it.’ So, of course, the executive power is vested in a single President simply because the framers decided to have only one” (Divou, 149). This means that the framers of the constitution saw it fit to have one executive because it would be more efficient to have an individual to make executive decisions rather than a committee. One person can make decisions much quicker than a group of people. This would be considered one of the strong points of the executive because he himself would be autonomous in his field, no one to dictate his judgment. As for the weak executive argument, Divou says that “The essence of their argument is that, despite the structure described in Federalist 51, the President can ignore the Congress and the courts in times of national danger”(Divou,150). This says that the president is susceptible to be tyrannical. He can override the legislation of the congress and the judicial branches, especially on the laws which he has signed off. So in regards to times of danger, the president can act however he pleases to resolve any national threat. However, it is uncertain if the president is capable of making decisions that can lead to the greater good of the country. If we are looking at the example of Lincoln, since he was in times of war, He had to make swift decisions which went against many rules of the constitution, though this can be used to prove against a strong executive argument. It can also be used to justify a strong executive argument because Lincoln executed his decisions which lead to the greater prosperity of the nation
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Brianne Gorod had argued in her opinion piece, “The Framer Wanted a Strong President,” that the Constitution had intended for a strong executive branch that can “always be in service.” This means that the execution of the law is an ongoing process, in which the executive has an obligation to “take Care that the Laws be faithfully executed.” I think that this argument does have the strength to it since we have seen what the nation was like without an “energetic executive.” The Constitution was made with the errors of the Articles of Confederation in mind. A lack of an executive branch had resulted in the absence of a source to implement any acts of Congress. This result shows that the laws were insignificant to the states, which held the most power under the Articles.
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The article “The Framers Wanted a Strong President” written by Brianne Gorod argues in favor of having a strong leader for the nation. Gorod further cements her point by quoting Alexander Hamilton “all men of sense will agree in the necessity of an energetic Executive.” Depending on specific circumstance such as that of War, National threats, Economic instability and National Disasters, then we can and must rely on an “Energetic Executive”. The author further adds that the new Constitution gave the president a number of powers and duties, among them the obligation to “take Care that the Laws be faithfully executed.” Yet what is weak in this argument is the ambiguity of the term “faithfully”. For if we are to interpret the following : “take Care that the Laws be faithfully executed” through the paradigm of the Originalists it will lead us to a different understanding of what “Faithfully” means than if we interpreted it through the paradigm as a “Living Constitution.” Therefore this should not be the focus of the argument for it produces confusion. Also, whether or not a president is seemed as “stretch[ing] his powers beyond their constitutional limits” is politically influenced. For example, given our current president we cannot fully depend on “the executive branch’s exercise judgment in determining how to “faithfully execute the law”. Thus, her argument is only based on how she “interprets” the constitution through the paradigm of the Originalists.
The article “Eight Things I Hate about the Unitary Executive Theory” written by Vicki Divoll, illustrates, as the title does too, the hatred towards the Unitary Executive Theory. Her rhetoric illustrates how the Executive must not solely depend on the Unitary Executive Theory. The Unitary Executive Theory claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering. According to the theory since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security. Thus the President by interpreting the Constitution as “he can set aside laws that attempt to limit his power over national security” during a national threat, depicts that he/she is stretch[ing] his powers beyond their constitutional limits”. Divoll consequently argues that “The Presidents job is not to interpret the Constitution but to defend the American people and defend the nation”. Yet given the circumstances, “an energetic Executive” is necessary due to the fact that he/she will take unilateral action to address national emergencies but it should only take action with the oversight of Congress. Furthermore, Divoll states that “The Unitary Executive Theory has never been accepted as a valid interpretation of the Constitution by the Supreme Court, nor any federal court”.
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According to Brianne Gorod, we need a strong executive to faithfully execute the laws. When congress makes laws they leave gaps and things up to interpretation. The supreme court defers interpreting the laws to the executive, so we need a strong executive to not only enforce the laws but interpret them as well. Not having a strong executive would go against the framers when they said they wanted the executive to be energetic. Vicki Divoll discusses the things she dislikes about the unitary executive theory. The main example that she uses is when George W Bush would go through laws and pick what parts he wanted to enforce. Here we can see where the executive may have too much power because they can ignore laws or parts of them. The executive can ignore things during time of danger but having this power to ignore certain parts to your own benefit is kind of scary.
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Vicki Divoll in her text “Eight things I hate about the unitary executive theory” argues that an executive that there have been attempts to use the unitary executive theory to justify expanding executive powers for the president without amending the constitution which she vehemently opposes. She supports executive power but only as long as there are no attempts made to give the president what appears to be limitless executive power. Which she claims that the proponents of the unitary executive theory attempt to. She highlights in particular the attempts by George W. Bush’s administrations attempt to expand executive power outside of the constitution aemending process using unitary executive theory and 9/11. According to Brianne Gorod in her article “The framers wanted a strong executive” for US News she argues that the framers of the cnstitution wanted the president to be a strong executive.To bolster her argument she uses a statement made by Alexander Hamilton.
The particular statement is “all men of sense will agree in the necessity of an energetic Executive”. She is argueing that we need a strong unitary executive. This statement is vague. Which leaves it open to a variety of ways to interpret it. This makes it unreliable to use in arguments for the expansion of the executive power of the president. Which of course weakened her argument. Whereas the argument made by Vicki Divoll appears to be more reliable.
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One argument in the article that is in favor of a strong executive is that it was wanted by the framers because they decided against having a committee make up the Executive Branch and the Vesting Clause enhances the executives power due. A weakness of this is that other Articles have a Vesting Clause and there is no definitive proof that the Vesting Clause in Article II has a greater significance than the rest of the Articles. Article II just gives power to the President and not to another part of the government. The other branches have powers assigned to them as well and not one branch has a defined scope of power due to the Vesting Clauses.
A strength of an argument about being against a strong executive is the example of President Bush when he signed bills into laws and didn’t even follow those laws himself. How does one expect others to follow when there is no executive example of the law being followed in the first place. To set rules for others to follow when one does not follow it themselves begins to resemble more of a dictatorship in the way where one tries to control another, which is not what the framers would have wanted. This resembles what Lincoln did when he violated many rights during his wartime powers which was unconstitutional even though he too was doing what he thought was in the best interest of the nation when it was considered in danger.
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The idea of having a strong executive can be a good and bad idea because the President can have all the power and the executive can make all the changes to whatever benefits them and not everyone else. I believe what the Farmers wanted to do would’ve gone to waste, they believe that Congress should have all the power. The good idea of having a strong executive power is if we are dealing with that is causing national threats such as war then we should give the executive more power. However, I disagree because once the Executive is strong, they won’t follow what is right or wrong or if this going against the Constitution and the people of the United States.
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One argument against the strong executive is made by Divoli is when she says that the Unitary Executive Theory is not supported by any type of law, because it is not a law. Essentially, this theory supports the idea that the president has unlimited power. But, this is just a theory. The strength of this argument made by Divoli is that there is no specific laws that grant the president unlimited power and that supporters of this theory are using this theory to justify when a president takes extreme measures, such as George W. Bush after 9/11. No court, federal or Supreme, has ever accepted this theory. i guess a weakness of this argument by Divoli would be that just because it is not explicitly said in the Constitution, does not mean it can not be valid. This is a weak argument against, because it has to do with interpretation and not everything in explicit in the Constitution, but this is all I can think of at the moment.
An argument in favor of a strong executive is in the article “The Framers Wanted a Strong President”. The argument presented by Brianne Gorod is literally in the title of this article. In the article she says, “The Framers might not have been able to foresee the precise problems that confront the country today. But they foresaw that the president might sometimes need to take unilateral action to address them.” This argument is that not every problem can be accounted for, therefore the president must take measures to address those problems, and the Framers knew that. The strength of this argument is that it accounts for problems that may be unforeseen. When a problem like that occurs, the president must take action, whether or not it is explicitly expressed in the Constitution. The weakness of this argument is that although measures must be taken to address unforeseen problems, it does not mean that the president has unlimited power. The president cannot just use an unforeseen problem as an excuse to do whatever he wants. It would be better to say the president has extended powers during these times, but definitely not unlimited.
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When listening to the podcast, it is made evident that Eric Posner and Julian Zelizer hold relatively contrasting views in regards to the position of authority of the United States executive branch. Posner holds the general consensus that a powerful executive is necessary for the United States. The condition here is that while he holds this view, he is not by extension saying that the presidency has no limitations; Congress and the courts should be factors of constraint and they are.
The big question comes forth when deciding exactly how much authority to allocate between the legislative and executive branches. Posner is of the view that the executive can stretch his powers due to the impracticality of Congress taking swift action in times of need. Congress has to go through a multi-step process that involves hundreds of differently opinionated individuals. This often complicated process does not facilitate quick action in response to national emergencies whereas the executive could simply issue executive orders and actions without congressional approval nor judicial oversight to address situations of dire need on behalf of the country. This is a major strength in this argument, however the fault and weakness that comes with this view is not have a clearly defined line that separates where the executive can and can’t act—is there, in essence, any bounds to the president’s powers so long as it isn’t barred within the Constitution? This is tricky and has the potential to be dangerous, serving as a basis of executive abuse.
The opposing view to this that Julian Zelizer and Vicki Divoll hold is that the President needs to set powers and not go beyond them. Divoll heavily criticizes the notion of “unitary executive theory” that the Bush administration—which she uses as historical evidence of presidential abuse of authority—practiced. According to her, this “theory” has never been accepted as a valid interpretation of the Constitution by any federal courts, including the Supreme Court. Furthermore, it is not up to the President to be the be-all, end-all authority of interpreting the Constitution; that is clearly a power vested in the courts. Also, a legal and historical event to further disprove unitary theorists is the ruling in Morrison v. Olson during the Reagan administration in which the unitary executive theory was effectively rejected by the Supreme Court, yet is never quoted by these theorists. In line with the question I posed for the first view, Divoll remarks that if you completely follow through with this theory, then the President can basically reject not only acts of Congress but also the Supreme Court, effectively disregarding all checks and balances and making him all-powerful; “no one can rein him in.” Where this point is a weakness for the first opinion that Posner and unitary executive theorists believe in, it is a strength for this argument that Zelizer and Divoll share. The pitfall, however, lies in perhaps relying way too much on the Constitution on a text-by-text basis. Not everyone shares similar interpretations of the Constitution, as evident by the unitary theorists, but Divoll most probably is being selective about the points she makes as much as unitary theorists do as well.
Overall, I feel like these arguments are subject to constantly being in flux dependent on who is in office and how their respective administration runs. Or perhaps, these views stay constant but I cannot help but wonder the extent to which these views may adjust themselves dependent on party lines and who is currently our executive.
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In the Gorod article, having a strong executive was found to be favorable. In the article, the critique is on the GOP during the Obama presidency. They felt as though the President did not extend or utilize his executive powers to its fullest extent. They felt as though his policies were much too lenient towards undocumented workers, who happened to be Latino/Latina. But as history has shown, President Obama deported immigrants at a record high in contrast to his predecessors. The article states that under the new Constitution, the implementation of the executive’s roles became more structured. But even after this, during the Obama presidency, the Republicans wanted him to utilize his executive order privilege more often but President Obama was already accomplishing what he needed to under the law itself.
In the Divoll article, having a strong executive (in terms of overreaching its power) was found unfavorable. Essentially, the articles surrounds the critique of the Unitary Executive Theory. This theory posits that the executive can circumvent the other branches of government to accomplish its goal. The framers were pretty adamant about this notion, hence the “hard line” of the balancing of power. The executive should NOT have the final word in regards to interpreting the Constitution, in addition to other powers that could usurp the other branches’ roles.
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The second thing I hate about this theory that purports to bolster the very broad view of the powers of the President is that the arguments are circular and self-serving. One of the few textual references that the theory’s proponents make to the Constitution is the Vesting Clause of Article IL The theorists argue that the Commander-in-Chief powers granted to the President are somehow enhanced, in a substantive way, by the existence of this Vesting Clause—that the two clauses must be read together.
The third thing that I don’t like about the arguments made by the unitary executive theorists is that they rely primarily on historical precedent, rather than legal precedent. In fact, they never rely on the law. They love to cite historical anecdotes about past Presidents’ use of their powers.'” I would say that law is precedent and history is anecdote—nice stories.
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Having a weak executive power was one of the reasons for the change from the Article of Confederation to the Constitution. For a country to be great there need to be an executive power that is strong and makes sure the law is being effectively executed. I agree that the president for the need to have a strong executive, But there is no oversights to make sure he that he isn’t favoring one law over another, or he might even decide to not enforce a law at all.
Having an executive that is too strong make the other houses useless therefore undermining the system of checks and balance that was set in place. If the president decide to not follow the rules of congress and the supreme court, it often means that the country is in danger and the president is doing its best to ensure its safety. Congress can always pass legislature to weaken the power of the executive and go against everything they deem not good.
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The issue of a strong executive branch is not a strictly partisan issue. There are many party members that argue amongst each other on this question. It is a question of legal theory and the role of government. People who are in favor of a powerful executive often cite historical precedent as justification for their beliefs. For example, in Brianne Gorod’s piece, she writes that the founders of the Constitution intended the executive branch of the government to be powerful as a reaction to the failure of the Articles of Confederation. She writes that House Republicans were wrong to describe the Founders as having a deep seated fear of an abuse of executive power. Gorod also writes that the wording of Article II, specifically “take Care that the Laws be faithfully executed…” allows the executive to take certain liberties with the enforcement and interpretation of legislation passed by Congress.
People that argue against a strong executive take issue with the claims made by people like Gorod. One example is the speech made by Vicki Dovill, called “Eight Things I Hate About Unitary Executive Theory.” In this speech, Dovill refutes several historical arguments people make in favor of a strong executive, and she uses the text of the Constitution to argue against the unitary executive theory. The unitary executive theory states that the President has complete control of all departments under the executive branch, because Article II ‘vests’ power into the President. Dovill cites a Supreme Court decision in Morrison V. Olson, the Federalist Papers, and the text of the Constitution. Dovil also expanded the unitary executive theory to make the only logical conclusion that their argument should also apply to the other two branches, since the power is vested in a similar way. Dovill’s arguments are deeply rooted in legal theory.
I believe that Dovill’s speech was more convincing than Gorod’s article. In Dovill’s speech she addressed the use of history in favor of strong executives. Dovill makes the point that although there were moments in history that appeared to require strong executives, this should not be used to justify that actions of the present and future. Those choices were made in the context of the events surrounding them. This does not mean those actions were legal. Regarding the question of legality, the legal precedent has suggested that those actions were not within the powers of the executive. Some moments require bold actions that challenge the limits the Constitution places on the government. The argument supporting those choices must be honest. Those choices were moral ones, not legal.
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In the article framers wanted a strong presidency by Brianne Gorod elaborates in favor for a strong executive. She mentioned framers had a “deep-seated fear of abuse of executive power”. They also didn’t want to have a weak president that couldn’t enforce the law. William Rehnquist mentioned in the Supreme Court that agencies chose went to enforce or prosecute law is done in the discretion of agencies and it is wrong to insinuate their executive overreach by deciding. Furthermore presence might have to take unilateral action to address problems.
Also, in the We the People podcast they mentioned that usually when the president has a lot of power is during national security moments. They are able to use these moments to extend and expand their powers. They mentioned that this started to happen when they started to build a national economy and foreign relations that power had to be moved up to the executive branch. Additionally, they mentioned that sometimes you need a powerful presidency because of the state they are in because during certain presidency there was either war or a financial crisis that they had to deal with that made it seem like they had expanding powers. Also partisanship can lead to the president to act out in aggressive fashion.
A weakness in this argument is that situations that have involved national security measures the presidency has made the decisions that have affected the countries involvement in areas for a long period of time. So is it fair to actually say that during those moments it is justified when they have in some cases made a mess abroad? Or should have the Congress been able to act against them. Yet, a strength in this argument is that they are acting in situations that are not addressed by congress so there involvement is needed.
In the unitary executive theory article the author argues that the executive branch is not expanding its powers. The author mentions that it wasn’t the task of the executive branch to interpret the Constitution but rather the Supreme Courts job . He also mentions that, the Article II vests power into the president. Additionally, he mentions that the framers had a debate of whether they executive branch should be one person or rather a committee they decided that it would rather be one person. Repositories of Power are not sources of power. Additionally, the three vesting clauses is doesn’t define the scope of power of each branch in any way, shape or form. The author also mentions how he doesn’t like how people who believe in this theory cherry pick the presidents and they use historical moments but doesn’t analyze or prove the scope of power of the executive. In federalist 69, President of Hamilton mentioned that the power of the executive comes from other sources in Article II not the vesting clauses. But unitary executive theorists say national security is a means that the president can be powerful. Moreover, federalist 51 the president can ignore the president. They are not bound to follow the laws set by Congress or any for that matter because of the power of veto. President interprets his own scope of power and the two branches can’t rain on him. However, the power of the purse can be checked on to the executive branch. Lastly, this author drives this point that it really depended the time period of the President to act aggressively.
A weakness for this argument is mentioning what is to be done when they do expand their powers. In the sense of can it be taken back? A strength is that it the author acknowledges the Constitution and mentions that to talk about this expanding power they cherry pick presidents and it doesn’t answer the overarching problem.
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One arguing factor in support of a strong executive power is the real life example of the failure of the Articles of Confederation as stated in the article by Brianne Gorod. The Articles were the law body that existed before the Constitution and they only lasted less than a decade. This was because under the Articles of Confederation, there was a weak executive government that was unable to enforce any laws. As a result, the founders intentionally created a strong executive branch under the constitution. One argument arguing against strong executive power is stated in the article by Divoll where he argues against the Unitary Executive Theory. Its defined as a theory used to justify executive and presidential powers, often used by the Bush administration. One argument against executive power is that the courts don’t view the theory as a valid constitutional interpretation and thus it doesn’t have any legal standing. One strength of the first argument in favor could be that its a real concrete example of what could possibly happen if we were to have a weak executive government, however one could argue its a weak argument because the historical context/circumstances back then are not the same now. The need for a strong executive power may vary from the needs today. In regards to the argument against executive power, the author states how the theorists only look at historical anecdotes instead of legal precedent. This can be a strength because legal precedent is very important and it transcends time. However historical anecdotes are also very important because they allow us to learn from the past and study the cause and effects of executive power and make predictions about how it can be applied today.
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Well put, Musfika. I see a particularly close reading here of the differing perspectives presented by Gorod and Divoll. I think you make a good defense, too, of “historical anecdote” despite Divoll’s criticism of it. Legal precedent is slow, murky, and often ill-adapted to the times, whereas history can help inform the real-life consequences of judicial decisions. We’ll take up these questions further in class
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Our founding fathers wanted a strong leader for the nation. Even though many people feared the abuse of executive power, the founders also feared a president so weak that he could not enforce the nation’s laws. One of the articles mention, that the articles of confederation didn’t last long because it had a weak executive branch, so to have a set of principles that last such as the constitution they needed to have a strong executive branch. The Gorod’s article he mentions “When Congress enacts a law, there will often be ambiguities and gaps, and courts will generally defer to the executive branch’s understanding of how to resolve those ambiguities and fill those gaps.” I kind of agree that we shouldn’t have a weak leading power because the President is an important person but we have the other branches in government for a reason, which is to not let the executive branch get too powerful. With the president being very strong like the Founders want, it takes away power from the other branches of government.
In Divoll’s article, he mentions that he dislikes that “executive theorists rely primarily on historical precedent rather than legal precedent. In fact, they never rely on the law.” Divoll believes that law should be looked at first instead of looking at history and what past presidents did. He feels relating back to what other presidents did does not tell us much about the proper constitutional scope of executive power. He mentions that it just “tells us that Presidents throughout history have acted powerfully, maybe rightly, maybe wrongly.” Unitary executive theorists pick moments in history to strengthen their view of executive power. Overall I think this is a strong argument and agree with it more than the prior argument I wrote about.
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The argument against the strong executive power is that the initial intentions of the framers was to have equal branches. The executive branch should not have been expanded beyond what the original intent was, because it has created an executive branch that has too much power. The argument that advocates for a strong executive power is that the changing times constitutes to a changing government, specifically a stronger executive power. This is because when the framers established the power between the branches of government, the country and the economy were not as big as it is now. The expansion of the executive power is also given, and when not given accepted by Congress. The Congress has the power to take back the power from the executive branch when they want to, which they have done on different occasions. This also relates to Divoli, who says that using what the presidents have done in history is not enough to help back up the continuous expansion of the executive power. The expansion should only be when there is legal basis to do so.
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The argument against the strong executive power is that the initial intentions of the framers was to have equal branches. The executive branch should not have been expanded beyond what the original intent was, because it has created an executive branch that has too much power. The argument that advocates for a strong executive power is that the changing times constitutes to a changing government, specifically a stronger executive power. This is because when the framers established the power between the branches of government, the country and the economy were not as big as it is now. The expansion of the executive power is also given, and when not given accepted by Congress. The Congress has the power to take back the power from the executive branch when they want to, which they have done on different occasions. This also relates to Divoli, who says that using what the presidents have done in history is not enough to help back up the continuous expansion of the executive power. The expansion should only be when there is legal basis to do so.
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President Clinton asserted that he could take military action without congressional approval based on his constitutional authority. In addition he also stated he could do since as president he was the commander in chief. Also President Clinton stated that he could take military related action because it was in an effort to conduct foreign relations. Which implied that he further asserted this in the president’s other role as the chief diplomat. I am not convinced that military action can be taken in the name of conducting international relations since a portion of international relations is about taking actions to prevent armed conflicts.
President Obama claimed that he could take military action in Libya because he had to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. This left me with a question. Why didn’t he put pressure on the Arab League the regional confederation for the middle east and north Africa to intervene in Libya in the manner he thought was needed? He additionally asserted that this particular conflict posed a threat to our national security and thus required military action on our country’s part. Likewise I am not convinced that his rationale for us taking military action in Libya without congressional approval is too weak. He should have put pressure on the Arab League to address this regional issue.
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