A Constitutional Presidency

On the eve of the national conventions of the two major political parties, C-Span aired a Massachusetts School of Law forum on Presidential Power in America: Article II of the Constitution. Panelists included Peter Irons, Professor of Political Science at the University of California, Jules Lobel, Professor of Law at the University of Pittsburgh and David Adler, Professor of Political Science at Idaho State University. The entire hour long panel discussion is worth viewing. Of particular interest at 24 minutes into the video is Professor Adler’s discussion of “A Constitutional Presidency” which runs for 12 minutes.

In his section of the panel discussion, Professor Adler says that the Bush administration has claimed powers for itself that the British people had refused to grant King George III at the time of the Revolutionary War. “No executive in the history of the Anglo-American world since the Civil War in England in the 17th century has laid claim to such broad power,” he says. “George Bush has exceeded the claims of Oliver Cromwell who anointed himself Lord Protector of England.” He goes on to say that Bush has “claimed the authority to suspend the Geneva Convention, to terminate treaties, to seize American citizens from the streets to detain them indefinitely without benefit of legal counseling, without benefit of judicial review. He has ordered a domestic surveillance program which violates the statutory law of the United States as well as the Fourth Amendment.”

Adler relates that the authors of the US Constitution wrote that the president “shall take care to faithfully execute the laws of the land” because “the king of England possessed a suspending power” to set aside laws with which he disagreed, “the very same kind of power that the Bush Administration has claimed.” Former Attorney General Alberto Gonzalez, Adler notes, repeatedly referred to the President’s “override” authority, “which effectively meant that the Bush Administration was claiming on behalf of President Bush a power that the English people themselves had rejected by the time of the framing of the Constitution.”

Adler says the Framers sought an “Administrator in Chief” that would execute the will of Congress and the Framers understood that the President, as Commander-in-Chief “was subordinate to Congress.” That very concept, Adler states, derived from the British, who conferred it on one of their battlefield commanders in a war on Scotland in 1639 and it “did not carry with it the power over war and peace” or “authority to conduct foreign policy or to formulate foreign policy.” That the Commander-in-Chief was subordinate to the will of Congress was demonstrated in the Revolutionary War when George Washington, granted that title by Congress, “was ordered punctually to respond to instructions and directions by Congress and the dutiful Washington did that,” according to Adler.

Adler relates how John Yoo, formerly of the Office of Legal Counsel, wrote in 2003 that the President could authorize the CIA or other intelligence agencies to resort to torture to extract information from suspects based on his authority. However, Adler points to the 1804 case in Little vs. Barreme, 6 U.S. 170, where the US Supreme Court affirmed that the President is duty-bound to obey statutory instructions issued by the Congress along with United States v. Smith, 27 Fed. Cas. 1192 (C.C.D.N.Y.1806) where Justice Paterson wrote that “[t]he president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what law forbids”. Adler also cites the reference in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) to the “equilibrium established by our constitutional system” as an argument against unchecked executive discretion.

“In these last eight years,” Adler states, “we have seen presidential powers soar beyond the confines of the Constitution. We have understood that his presidency bears no resemblance to the Office created by the Framers… This is the time for us to demand a return to the constitutional presidency. If we don’t, we will have only ourselves to blame as we go marching into the next war as we witness even greater claims of presidential power.”

For more on the Constitution and the powers of the President, see The Constitution and the Termination of Treaties by David Adler, Call No. KF5055 .A94 1986 and Bush, the Detainees, and the Constitution: the Battle over Presidential Power in the War on Terror by Howard Ball, Call No. KF5060 .B35 2007 in the BLS library collection