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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 12



Sections 2 and 3 of this Article respectively grant the powers of the office of President and articulate the duties he shall discharge.  You are cordially requested to take note that they are indeed few and limited, and also that they relate to matters of national import only.  Section 2 says the President shall be Commander in Chief of the military; he may require written reports from the executive department heads; and he can grant reprieves and pardons for offenses against the United States, except in cases of impeachment.  He shall have the power to make treaties; he shall appoint ambassadors, other public ministers and consuls, judges of the “supreme (sic) Court,” and all other officers of the United States not provided for; and Congress may vest, in the President alone, the power to appoint such inferior officers as they think proper.  The President is to have the power to fill all vacancies that happen while the Senate is in recess.


Section 3 says the President is to give Congress information on the state of the Union and his recommendations; he may convene both Houses, and under a very specific circumstance he may adjourn them; he is to receive ambassadors and other public ministers; “he shall take Care that the Laws be faithfully executed”; and commission all officers of the United States.  There you have it, the sum total of the constitutional powers and duties of the President of the United States.  Is this a commission for a presidency that you recognize?


Section 4, the last section of this Article, simply states that the President, Vice President, and all civil officers of the United States are subject to impeachment for cause.  Before we leave this Article, we shall dwell briefly on the subject of presidential orders and directives.  These take several forms.  Among them are PEOs (Presidential Executive Orders); PDDs (Presidential Decision Directives); NSDDs (National Security Decision Directives); and PMDs (Presidential Memorandum Directives).  What are they?  What are the differences between them?  How do they operate?  Where is the authority of the executive to issue them found in Article II?  I don’t have all the answers to these questions. 


Only occasionally do we hear about them in the news, but for the most part they remain in a world of shadows and secrecy.  From what little I have been able to learn of these orders and directives, the subject matter and potential for assault on our liberties are cause for great concern; but because I do not possess any irrefutable proof in the matter, this will not become a part of our discussion.  Instead, our discussion will focus on what the President is able to do with these orders and directives, question the President’s authority to use these, and explore whence this authority derives.  It is his authority, not his power, which I question.  The difference is this:  a robber with a handgun may have the power to take your billfold, but he has not the authority or right to do so.


With the President having the power to issue these orders and directives at his own volition and upon only his signature, he is able to elude the entire legislative process.  There is no public discussion of the subject matter or consequences of these orders, much less any public input — neither by the citizen, nor by the body of our elected representatives.  It is possible there may be some input from some selected group or individuals from that body, but even this is shielded from our view.  He has the power to make the law of the land conform to his personal whim . . . to, as it were, make this nation over into his own image and likeness.  This kind of behavior is much more characteristic of a dictator, tyrant, or king than of a President, at least the President envisioned by our Founders.  The President they gave to us was supposed to sign and faithfully execute the laws enacted by our duly elected representatives, not take it upon himself to establish the law of the land single-handedly.


It is quite clear from reading Article II of the Constitution that the President has no direct grant of authority to do these things.  Well, from where might this authority derive?  It is my opinion that we must return to Article I, Section 8, Clause 18, where we find, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.”  On the surface, this much might seem to be a valid exercise of authority on the part of Congress.  If you read carefully, you will discern that Congress may only make laws that are necessary for an officer thereof to execute the powers that are already vested in him by the instrument.  They have absolutely no authority to vest in him any new powers without a duly ratified amendment to the instrument.  Furthermore, any use to which the President puts these laws enacted to assist him in the execution of the powers already vested in him must be in conformity with the instrument.  It would also be entirely appropriate if such use were also in conformity with the “laws of Nature” and were limited to objects national in nature and did not impinge on the sovereignty of the several states or “we the people.”  From the portions of some of these orders that I have seen, it would appear that many of them violate these restrictions, which are wholly necessary for the preservation of liberty with impunity.


It would also appear that Congress has abdicated its responsibility for oversight in these matters.  They have handed the President power that borders on plenary and walked away, leaving the President to do as he wishes.  With every violation of the above restrictions comes an act of perfidy on both the part of the President and Congress.




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