Executive Powers & Privileges |
Although the Constitution grants some specific powers to each of the three branches of government, there is no provision specifically declaring that each shall be separate. James Madison, at the time of the passing of the Bill of Rights, proposed a amendment to accomplish just that but was rejected. Separation prevents concentration of power (seen as the root of tyranny) and provides each branch with weapons to fight off encroachment by the other two branches. Madison argued in Federalist 51, "Ambition must be made to counteract ambition." A number of views exist as to the extent of executive power ranging from the position that presidents may only exercise powers specifically granted by the Constitution or delegated to the president by Congress under one of its enumerated powers, to the extreme opposite that presidents may do anything not specifically prohibited by the Constitution. The Supreme Court has also indicated that Congress may impliedly or expressly disapprove of the exercise of a power by a president. (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 1952) Justice Anthony Kennedy noted in United States v. Reynolds, 345 U.S. 1, 7 (1953) that "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.'" . In United States v. Nixon, 418 U.S. 683 (1974) , the Supreme Court made very clear that neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege. The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the seeking branch would plainly conflict with the constitutional function of the other branches. The court held that it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. One thing is for sure, executive privilege cannot, in the face of legal inquiry, legally be used to cover up actions and policies that involve an outright violation of the law. One of the problems is that the Bush administration in overtly abusing the process, is gambling that Congress will choose to pick its fights, and by not challenging each and every abusive claim, will set a precedent for future claims. The stated goal of the administration of George W. Bush was to claim more powers for the presidency. Led by Vice President Cheney the administration used the Unitary Executive theory to attempt to cut Congress out of its approval and oversight powers. Using a combination of signing statements, executive orders and claims of executive privilege along with a constant claim of national security considerations, the Bush administration created an Imperial Presidency shrouded with a heavy veil of secrecy. The term 'separation of powers" has taken on new meanings and the system of checks and balances, so crucial to our constitutional democracy has been severely wounded.. Thankfully, the Courts, when given the opportunity, have rejected the administration's positions. Charlie Savage's book, "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy" provides an objective tracing of the steps taken since 9/11. Endorsed by Conservatives and Liberals alike it is "a must read for anyone who cares about our constitutional system of government."
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Imperial Presidency Has Long History ©GovExec.com |
Video and Docs |
Cheney's War PBS's FRONTLINE examines the battle
over the power of the presidency and Cheney's way of looking
at the Constitution.
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WWW |
The New
Imperial Presidency - Renewing Presidential Power After
Watergate About the Book |
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Imperial presidency, invisible Congress
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Executive Enforcement of Treaties With Foreign Countries vs States Rights. (Medellin v. Texas) The U.S. Supreme Court rules that an International Court of Justice judgment is not directly enforceable as domestic law in state court. While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be "self-executing" and is ratified on that basis. The Federalist Society Debate - Part 1 The Federalist Society Debate - Part 2
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War Powers - President v. Congress Reviews of the War Powers Resolution of 1973 How are the President and Congress implementing
it? What problems exist? Suggestions for correcting.
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Immunity of Former Counsel to the President From Compelled Congressional
Testimony
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Should Use of Executive
Privilege Be Reduced? |
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Executive Privilege and
Signing Statements Outline by Peter M Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University |
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