The Rule of Law and the Executive Branch

During the last forty three presidencies, two noticeable tools of the president concerning the rule of law and the executive branch can be observed and should be considered as to the encroachment of the executive on the legislative and judicial branches. Executive orders and signing statements first used with scarcity have played an important tool for the executive and have increased in number and complexity over the years. The proper use of these tools enables the president to faithfully execute powers or administer the agencies underneath him. The improper use of them can lead to usurpation of the legislative power, aggrandize the office of the executive, or to attempt to establish legal precedent and justify an alternative position to the Judiciary.

Several presidents, including the current forty third president, has used signing statements at the time of signing a bill into law to publicly declare that certain provisions within the bill would not either be enforced or declared unconstitutional and that the president will disregard the bill as it pertains to the office of the executive. There are three primary problems with presidents who take these positions.

First, to declare that a provision of the law will not be enforced is a violation of the oath of office to uphold the constitution and the laws of the United States. It should also be considered an anticipatory breach of the law, as the president has declared intentions not to adhere to certain sections of it, thus violating the law he just signed. It is unclear as to why and how the congress has allowed any sitting president to declare this and not act upon it. But any violation of the law could be grounds for impeachment and removal from office. The secondary failure here is upon the congress who did not act knowing that a sitting president might be violating US law.

Second, the president has not used his veto power under the constitution to reject the law. The law must be signed in whole, not in part, or it must be rejected via veto authority granted to him. This is an express authority granted to the president and a fundamental part of creating legislation in the United States. The president does not have the authority to selectively implement certain sections of the law and not others. To the extent this is done materially alters the spirit of the law created by congress and is an encroachment upon their authority.

And lastly, by act of declaring something unconstitutional and seeking to claim the president does not need to comply with certain aspects of the law, the executive branch has stated that the office of the executive is outside or above the law. Any president who claims to be outside the law after 1974 is in contempt. In the United States vs Nixon Supreme Court decision, the Supreme Court determined that no person, even the president of the United States is above the law or outside it. Thus any president publicly declaring such after the US vs Nixon decision is in contempt of the Supreme Court. An in each instance, the Congress has been negligent and not acted to protect the population.

The primary control concern with this failure of government is the creation of ‘negative approval'. To explain further, if congress passes law (A) and the president declares through a signing statement that he is not going to obey a provision of law (A) unless congress objects. This places the ownership of congress having to either create a second law related to law (A), subject to his veto, to make the president comply with all provision of law (A) or impeach him. But it must be noted that the president would merely sign the new law and again state that he is outside obeying that law, thus negating any affect of that law or enforcing the law. Thus, the only real option would be impeachment but that would require catching him in not obeying the law (A), and take up valuable congressional time doing the investigation as the Justice department reports to the president and its head appointed by the president. This in of itself is a serious control failure and to be discussed in a later essay.

In August of 2006, the American Bar Association put together a task force to study signing statements and the president’s use of them and the constitutionality of using them in the ways described above. Their findings give reasonable provisions and preventive controls as a starting point to the constitution and should be adopted either in an amendment or be incorporated into a new constitution as a result of a constitutional convention to resolve all the problems with our current form of government. Their recommendations are listed below and the full report at the following website: http://www.abanet.org/op/signingstatements/

RESOLVED, That the American Bar Association opposes, as contrary
to the rule of law
and our constitutional system of separation of powers, the issuance of presidential signing
statements that claim the authority or state the intention to disregard or decline to enforce all or
part of a law the President has signed, or to interpret such a law in a manner inconsistent with the
clear intent of Congress;

FURTHER RESOLVED, That the American Bar Association urges the President, if he
believes that any provision of a bill pending before Congress would be unconstitutional if enacted,
to communicate such concerns to Congress prior to passage;

FURTHER RESOLVED, That the American Bar Association urges the President to
confine any signing statements to his views regarding the meaning, purpose and significance of
bills presented by Congress, and if he believes that all or part of a bill is unconstitutional, to veto
the bill in accordance with Article I, § 7 of the Constitution of the United States, which directs
him to approve or disapprove each bill in its entirety;

FURTHER RESOLVED, That the American Bar Association urges Congress to enact
legislation requiring the President promptly to submit to Congress an official copy of all signing
statements he issues, and in any instance in which he claims the authority, or states the intention,
to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a
manner inconsistent with the clear intent of Congress, to submit to Congress a report setting forth
in full the reasons and legal basis for the statement; and further requiring that all such submissions
be available in a publicly accessible database; and

FURTHER RESOLVED, That the American Bar Association urges Congress to enact
legislation enabling the President, Congress, or other entities or individuals, to seek judicial
review, to the extent constitutionally permissible, in any instance in which the President claims the
authority, or states the intention, to disregard or decline to enforce all or part of a law he has
signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and
urges Congress and the President to support a judicial resolution of the President's claim or
interpretation.


Vox Vocis res Publica

The Executive Branch’s misuse of Military authority

As of this year, forty-three examples of the Executive branch can be examined to understand the weaknesses and failings that have occurred over time. These failings can occur in two ways, independently of the other two branches or in conjunction with one or possibly both of the other two branches. The former will be the object of this essay rather than the latter. One might consider that if all three branches exercise one judgment, then how is this weakness? But history has shown us that the passions of the people and the government can produce sufficient cause for concern of the populace in part that produce a violation to civil liberties and property. However, the uniqueness of the Executive branch filled by some individuals has used the vagueness of the constitution to aggrandize the power and authority of the office. It is the Executive branch that has encroached not only on the powers of the Legislative, but attempts to thwart judicial precedence, rule of law, and threatens civil liberty and property directly based upon the executive’s increasing belief in expanding inherent powers.

While many notable novelists have researched and documented numerous examples of presidential abuses and encroachments, these essays will focus on limited key aspects of the executive branch to satisfy the argument of reform and not attempt to document each instance over the last two hundred years.

The executive branch, being designated as the commander-in-chief of the military forces of the United States, has improperly misused those forces in both matters of war and civil liberties. In two instances over the last century alone, the executive branch has declared wars on sovereign nations without the express declaration of Congress. In absence of the Congress’s constitutional declaration, the president has demeaned the office to despot. In both the Korean and Vietnam wars, the president ordered troops to invade societies and countries without proper authority. These wars resulted roughly in fifty four thousand and fifty eight thousand American military deaths, respectively. And while one of them had to be ended by congress’s refusal to continue funding, the other is technically still unresolved after fifty years.

The basic deficiency resulting in both these wars is the president’s ability to give an executive order to attack that is wrongly obeyed by the military, or that the president orders forces into such a provocative position that it invites attack. To further explain ‘wrongly obeyed’, the American citizen and their military commanders must believe that a moral and constitutional preponderance exists to the contrary of a presidential order to attack. A military commander must have a duty under the constitution to know that an immoral or unconstitutional order should not and cannot be obeyed, especially when American lives are to be considered. The order to attack is expressly given solely to the Legislative branch, and not the president. Thus, it is not only a failing of the president, but of the generals who concur and blindly obey orders. The military forces seem to be beholden to the president and not the American citizen nor their constitution.

A second and alarming issue has arisen in the daily news articles and publications on the misuse of the military that is expressly against the rule of law. Both, the Washington Post and Army Times are reporting that US troops will be used on US soil for homeland security. While this deficiency has not yet occurred, there is every reason to believe that it will come to pass especially given in light of the Executive branch’s attempt to expand their control and power over the other branches and the people. In the name of security, current and future presidents are going to quarter troops in a occupation on American soil as they direct the Department of Homeland Security. Abuses to civil liberties is likely to occur from this action.

And contrary to assurances given to the public, news agencies have learned that a mere forty five hundred soldiers has now ballooned into twenty thousand soldiers. But the amount is not to be believed. For if one thing the last two hundred years has shown us, it is the insatiable desire of the American government to expand its authority and invasiveness into the lives of the American citizen and their liberties.

Vox Vocis res Publica