After a national election that chose a new President, an election that took place in a closely divided nation, our new President has unleashed a continuing outpouring of initiatives. These have generated widespread debate and hand-wringing. The President’s initiatives and the debate surrounding them–coupled with the underlying division in our country–threaten our national stability, if not our country’s continued existence. These initiatives seem disorganized and lacking in reasoned support, while the debate they have engendered seems overblown and unfocused.
All this brings to mind Benjamin Franklin’s answer to a question about the nature of the government formulated by the Constitutional Convention of 1787, to which he was a delegate. Franklin reportedly responded that our new government was “a republic, if we could keep it.” The test now before us is whether we can keep the people’s government, as Franklin framed the issue.
I suspect that Franklin’s response reflected not only his long personal experience, but the debates, arguments, and compromises he had just witnessed at the Convention. His observation suggested that the document submitted for ratification was only the initial foray into a new kind of government. The test would be how we humans, with all our weaknesses, prejudices, and egos, could handle the challenges of a republican, confederated, and free government.
That test is now upon us. How we respond will determine if we can keep that government. We face today what Franklin foresaw. His response put the issue well. We have arrived at the point where our leaders determine whether we can keep our republic. Else, our government of the people, by the people, and for the people will perish from the earth.
The answer to the question asked of Dr. Franklin lies within our Constitution. Over the years, the Constitution has received tortuous and tortured interpretation by our courts, has been ignored or treated as an impediment by our leaders, and has been seen as an instrument to be interpreted in favor of particular points of view by our political parties.
But the Constitution endures–and it provides a way out of the threats we face today. The Constitution is the vehicle the American people chose when asked how we would be governed. We should–we must–turn to the Constitution in this hour of grave challenge.
We must first face why we have government. President John Kennedy once said: “ask not what your country can do for you, ask what you can do for your country.” Today, our political party system reflects poorly the premise underlying President Kennedy’s challenge–both major parties have fallen victim to greed and gratification. Both have fed on the desire for power and fortune that seem endemic to humankind. Both parties pander.
Our contentious debates today, and the political divide we created over the last century, can only be reconciled by a recommitment to the Constitutional principles we ratified as a people. We must return to supporting it, not because it is an easy answer to our current crisis, but because it is the only answer. And our view of the document must reflect our answer to President Kennedy’s insightful question–what can we do for our country? We can answer that question by relying on the people’s Constitution. Let’s take a look.
The first place to look is to the form of government designed by the Convention and ratified by the people of America. It is a republic–power is exercised by representatives chosen by the people to perform the tasks set forth in the Constitution and by the laws passed by those we elect. We, the people, elected this President and the members of this Congress. And the government we approved is a federation–not a unified national government designed to replace the state governments. The state governments retain all the powers not given to the general government–meaning the government of the United States.
As most folks know, the Constitution structures our national government into three branches. But most folks do not realize that the three-branch structure was intended to keep that national government limited and constrained. While the new national government was supposed to be more “energetic” than was the national government under the Articles of Confederation, it was never intended to be “efficient.” Indeed, it was designed to be inefficient; none of the three branches would be dominant–each would be limited by the power of the other two.
We chose not to have a monarchy. Our chief magistrate–our President–was not to have unlimited power. Indeed, the Constitution designed a national system in which the legislative power was strongest. Executive or presidential power was limited.
The main focus of the Constitution was on the power given to the federal (sometimes called the national or general) government. Most of that federal power was to be exercised by Congress. Article I, Section 1, says that “all” legislative power resides in Congress. And Section 8 of that article details the constitutional allocation of power to the more energetic federal government, specifically to Congress. The Constitution identifies the areas in which the legislative branch was to act by passing laws. Then, to make things even clearer, the Bill of Rights, amended the Constitution, specifying in the Tenth Amendment that the powers not delegated to the federal government were reserved to the states or to the people.
Power over those topics was not given to the President. The Constitution gave no legislative power–no power to make federal law–to either of the other branches. It specifically limited the power of the President. Unlike the King of England, the chief executive was given no power to make laws or to make the government more efficient. The President’s role was defined in Article II. The parameters of presidential power were limited and defined.
The Constitution requires that legislative power be exercised by Congress, not by the other branches. The executive and judicial branches are given specific powers under specific constraints. The President was given several particular powers, but no legislative power. No matter how much a President finds wanting Congress’s exercise of the powers delegated to it under Article I, the President is not empowered to “fix” or “correct” what Congress does. He is not empowered to improve upon what Congress decides. Nor are the federal courts. The President’s only constitutional recourse against unwise congressional action lies in his power to veto legislation as it occurs.
Many areas are placed under legislative control; few are given over to executive control. Article II, Section 1, begins and ends with limits on the President of the United States. Clause one states that the “executive power” is vested in the President and in no one else, but the President is not given legislative or judicial power. Nor are the other branches given executive power. The final clause in this section provides two limits. First, the President must swear to faithfully execute the office of President of the United States. That office is described in Article II, which does not contemplate that the President will expand the office beyond its constitutional limits. Second, the President must swear that he will “preserve, protect, and defend the Constitution of the United States.” His duty is to the Constitution as it exists.
The next two sections of Article II shape the office by setting forth the powers of the President, along with the limitations on those powers. According to Article II, Section 2, Clause 1 the President is empowered: (1) to be the Commander in Chief of the Army, Navy, and Militia (when called into actual service of the United States); (2) to require the written opinion of the principal officer of each executive department upon any subject relevant to the duties of their office; and (3) to grant reprieves and pardons for violations of the laws of the United States (except impeachments).
Clause 2 of the Section 2 provides limited presidential power to act in certain particulars; the power is limited because it is shared with the Senate. First, the President may make treaties, but only if two-thirds of the Senate present at a vote concur. Second, the President is empowered (but only with the advice and consent of a majority of the Senate) to appoint Ambassadors; other public ministers and consuls; judges of the Supreme Court; and all other officers of the United States whose appointments are not covered by the Constitution and are made by law (but Congress decides who makes the appointments). And, in Clause 3 of this section, the President is empowered to fill vacancies in offices during the recess of the Senate by granting limited commissions.
Section 3 of Article II, mandates that the President from time to time give Congress information on the State of the Union and recommend to Congress such measures as the President shall judge necessary and expedient (note that this power is to recommend action, not take it). Section 3 also provides that the President may convene both houses or either of them on extraordinary occasions (note that this power also does not allow the President to take action). If the houses disagree on the time of adjournment, the President can set it. This section mandates that the President receive ambassadors and other public ministers. It concludes with an admonition that the President take care to see that the laws are faithfully executed and that the President commissions all the officers of the United States.
Section 4 concludes Article II with a provision that the President is among those who can be impeached and removed from office.
And that is all. There is no mandate that the President make government “efficient,” or make America great again, or improve on legislative enactments. He is not empowered to reorganize the government, including reorganization of the executive branch.
The Constitution and the laws made by Congress are the Supreme Law of the land. Nothing exempts the President from obedience to the laws or to the Constitution. The Constitution relies on the legislative and judicial branches to keep the executive branch within its limits. Americans should rely on these other branches to perform their roles; Americans should insist that they exercise their constitutional duties. The members of those branches are obligated to keep the President compliant with the Constitution. Doing so is their sworn duty, no matter how much it conflicts with their political loyalties and inclinations.
Arguing about the details averts our attention from the premise of the Constitution. The President is neither a king nor a dictator. He is not empowered to change any law or the Constitution. We cannot cede to him any function that is not his. The people of America already decided what power the President should have.
About the Author: Don LeDuc is the retired president and dean emeritus of Cooley Law School. His book, Michigan Administrative Law, is revised and published annually by the West Group. He is a member of Scribes, the American Society of Writers on Legal Subjects, and received the Golden Pen Award from the Legal Writing Institute. This article is part of a multi-part series discussing the meaning of the U.S. Constitution's words.