Article II |
The Constitution is written in such a way so that it's very easy to track down whatever information you're looking for. Article I tells you everything there is to know about Congress. Article II tells you everything there is to know about the President and the Vice President.
In truth, the President does not have very many powers, but Article II establishes
those few powers he is given. It also establishes the means by which the President
is chosen. After the recent controversy about the election of President Bush,
people have begun to pay more attention to the Electoral College. If you're
confused about the Electoral College, Article II is the place to look for more
information.
2.1.1 The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President, chosen for the same Term, be elected, as follows.
Excellent! We have a President and a Vice-President in control of the executive
branch of government. Basically, the executive's job is to enforce the laws
passed by the legislative.
2.1.2 Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
This is your Electoral College. These are the people who choose the President.
What this clause means is that each state has the same number of electors as
they have Representatives and Senators. The electors are not the same people
as the Representatives and Senators-in fact, office holders are not allowed
to be electors-but they get the same number.
The state of Colorado, for example, has seven Representatives. Each state has
two Senators, so Colorado has a total of nine people in the Congress. Therefore,
nine different people will be selected to be electors.
The manner by which the electors are selected vary. Each state decides how it
will handle the task. Most commonly, each party selects their potential electors
(in Colorado, the number would be nine, in Texas, thirty-four, etc.). Then comes
the popular vote. This is not how the President is selected. However, it still
plays an important role in the process, because the popular vote in each state
determines which party's potential electors will be come electors.
This is where the states vary most. In some states, if a particular party gets
51% of the popular vote, that party gets all of the electors. In other states,
the number of electors each party gets is proportional to the percentage of
votes in the popular vote.
So the first thing that that's done is for the parties to select potential electors.
Using the numbers from Colorado, I will illustrate. The Republican party holds
a convention and selects nine potential electors. The Democratic party selects
nine potential electors. The Libertarian Party selects nine potential electors.
Then comes the popular vote.
In some states, it's a winner takes all scenario. So let's say that, in the
popular vote, the Republican gets 50%, the Democrat gets 40% and the Libertarian
gets 10%. In these winner takes all states, all nine of the Republican party's
potential electors become electors, and neither of the other parties' potential
electors get to vote.
In other states, the electors are more fairly divided. Let's say that, in the
popular vote, the Republican gets 33%, the Democrat gets 33% and the Libertarian
gets 33%. In these states, three of the potential electors from each party would
go on to cast their votes.
While we're talking about electors, it should be noted that the electors do
not have to vote for their own party's candidate. The electors are expected
to vote their conscience, no matter who that might be. Usually, it is their
party's candidate.
Theodora Nathalia "Tonie" Nathan ran for Vice-President (with John
Hospers) in 1972, on the Libertarian ticket. She became the first woman ever
to receive an electoral vote-and it came from a Republican elector named Roger
MacBride.
The next clause is a very large one, which further explains how the Electors choose the President. It was superceded by the Twelfth Amendment, so as you read it, understand that this is no longer the way we do things. It is, however, important to know for the sake of recognizing how we got into the trouble we're in today.
2.1.3 [The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse (sic) by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State have one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.]
Whew! That's a hell of a process, isn't it? Actually, it's not as complicated
at this clause makes it seem. Basically, the candidate with the most votes was
the President, and the runner up was the Vice President. That means that the
President and Vice President would opponents.
At the time of the signing of the Declaration of Independence, John Adams and
Thomas Jefferson were great friends. They both wanted independence and they
agreed with each other. By the time the Constitution was ratified, they were
enemies. John Adams was a nationalist. Thomas Jefferson was a federalist.
When Adams took the Presidency, Jefferson became his Vice President. This, quite
understandably, made things very uncomfortable for both of them. It made it
harder to get anything done. Now, I happen to agree with Jefferson much more
than Adams, but neither of these men could be considered "corrupt"
by today's standards. Today just about every member of all three branches of
government is corrupt. Imagine how much better it would be if the President
and Vice President were from opposing parties.
Imagine a Republican President and a Democratic Vice President. I think this
would be much better than what we have today (even though the Republicans and
Democrats are generally both just statists).
We'll look at the Twelfth Amendment in detail later. For now, all you need to
understand is that the Twelfth Amendment changed the process to what we have
today. Basically, the electors still cast two votes. However, their two votes
are now placed on two separate lists, one for President and one for Vice President.
So in theory it's still possible for the President and Vice President to be
from different parties. But since the electors usually vote for their own parties,
it's unlikely.
2.1.5 No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
This is pretty straight forward, and doesn't require much commentary on my part.
I include it in this chapter, instead of including it only in the appendix with
the full Constitution, for only one reason, and that reason is that there is
a fairly large group of people, largely based out of California, attempting
to change this requirement so that Arnold Schwarzenegger can seek the Presidency.
Not a good idea, if you ask me-and not just because of what I think of Schwarzenegger.
But that's another debate.
2.1.8 Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: - "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Everyone knows the President, before taking his office, needs to take an oath.
This is that oath. What many people don't understand is that the President is
not the only government official required to take an oath. Every member of every
branch of government-from the President to the Congress to the corner police
officer-has to take a similar oath.
The reason for this is simple. The Constitution is a contract between We the
People and the government. Generally, contracts are signed. However, if every
member of government actually signed the Constitution, it would get far too
large far too quickly. So by requiring them to take an oath of office to uphold
and defend the Constitution, we can bind them to this contract.
If the President-or other government official-violates this oath, he is guilty
of perjury, which is punishable by imprisonment. I want you to remember that.
If any member of any of the three branches of government does anything that
violates the Constitution, he (or she) is guilty of perjury.
I contend that almost every one of them has violated the Constitution, and should
be brought up on charges. The trouble is that the government is bad, so there's
really no formal way to pursue such charges, unless we can get some good men
into office. Perhaps, after you've read this book, you'll help us to do so.
2.2.1 The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Here's another one of our famous checks and balances. The legislative makes
the law, the executive enforces the law, and the judicial applies the law (as
in the courts). The President can, however, pardon someone for an offense, even
if the courts find them guilty. It basically means that no one person-indeed,
no single branch of government-can hold too much power. Constitutionally, all
three branches are supposed to watch over each other.
This division of power is deliberate. It makes it very difficult for anyone
in government to do anything.
So, the President can pardon someone for a crime they may have committed. However,
that power is limited, so that the President can't pardon himself in cases of
impeachment. Of course, Nixon is a perfect example of why that clause isn't
perfect.
It is also worthy of note that Congress has the power to declare war, not the
President. This is often overlooked in modern times, as Presidents are going
to war without the Congressional declaration. However, once the Congress declares
war, they no longer have the power to decide what happens. Overlooking the war
becomes the President's duty. One branch declares war. Another fights the war.
Dividing the power.
2.2.2 He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Basically, this is one of the biggest jobs of the President. He has the power
to appoint people to many different offices-including the Supreme Court. The
Senate confirms his nominations (another division of power), but it's still
a big responsibility.
Presidents have very few powers. If we really still had a Constitutional government,
the only thing we'd really have to worry about is who the President would appoint
to the various offices. He doesn't have very much power-except in times of war,
when he controls the military-but the people he appoints often have amazing
amounts of power.
2.3.1 He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other publish Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
This establishes a relationship between the executive and legislative branches.
The legislative makes the laws, the executive enforces the laws. This also establishes
that the President is expected to make regular reports to Congress and recommend
legislation that he views as being necessary.
2.4.1 The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Personally, I believe almost every recent President has been guilty of treason,
bribery, and tons of other crimes. Unfortunately, charges are rarely brought
against them. Bill Clinton got in trouble because of his private life. I agree
he should have been Impeached. But not because of his private life. He was simply
not a good President (then again, I haven't seen a good President anywhere except
the history books).
That's the end of Article II. Now you know everything there is to know about
the President. Or at least, you should. But I'm curious about something…did
you see, anywhere in Article II, a clause allowing the President to write Executive
Orders?
If you didn't, you're not alone. If you did, please write to me. I would very
much like to see your copy of the Constitution, because it's certainly not the
same one I'm reading.
The first President to sign an Executive Order was George Washington. Washington,
however, did not violate the Constitution with his Executive Orders. The President
is the Chief Executive, and has a very large staff. So, an Executive Order is
an order to his personal staff. An Executive Order calls for more pencils. An
Executive Order tells the cook to make meatloaf for dinner. An Executive Order
does not make law.
Well, since then, they have been used for un-Constitutional purposes. Abraham
Lincoln was the first President to write an Executive Order in this new way,
and ever since, all Presidents have been doing so. What they presume to do is
sign this Executive Order. Therefore, they bypass Congress and make law for
three hundred million Americans.
That is un-Constitutional, and every President to do so is guilty of, at the
very least, perjury and at worst, depending on what the Order says, treason.
Remember when I said I'm an iconoclast? I didn't mean that lightly. I'm going
to tell you the truth about a man who has been hailed as one of the greatest
Presidents of all time, and how he set a precedent for other Presidents assume
emergency powers. Don't say you weren't warned.
I said this trend of Executive Orders started with Abraham Lincoln. Well, here's
that story…
After Lincoln was elected, Southern members of Congress refused to return to
Washington. This meant that Congress was unable to establish a quorum, so basically
nothing could be done. With Congress absent, Lincoln decided to play dictator,
interpreting the Constitution for himself.
His interpretation, in a nutshell, was that during times of emergency, the President
has certain "war powers," not listed in the Constitution. Sound vaguely
familiar? It's the same thing Presidents have been saying during every war since
then.
One of the first things Lincoln did as dictator was suspend the right of Habeas
Corpus! Remember from Article I that Congress was not allowed to suspend the
"Great Writ." But the Constitution doesn't say that the President
can't. Of course, since that power is not exclusively listed, he can't do it
anyway. But he did. For a period of several weeks, Lincoln arrested people without
an indictment, despite the public outcry.
When the Supreme Court ordered him, at the end of the Civil War, to restore
habeas corpus, he wrote an interesting letter of defiance. There's been a lot
of literature printed about Lincoln's suspension of habeas corpus, but it all
agrees that he fought for it, even when the Supreme Court shot him down.
Soon after, Lincoln attended a performance of Our American Cousin at Ford's
Theatre, where John Wilkes Booth shot him in the back of the head.
There have been many theories about Booth's motives. Some say he was upset about
the Union victory in the Civil War and wanted to spark a new conflict. Some
say he was an agent of the bankers, who Lincoln angered by printing Greenbacks
(see the chapter on the Federal Reserve). But is it possible that Booth was
upset about Lincoln's suspension of habeas corpus, and disregard for the Constitution?
We'll probably never know for certain.
The good news that came of this all is that Lincoln's declared state of emergency
(and the accompanying suspension of habeas corpus) ended as soon as the war
was over.
The bad news is that Lincoln set a precedent.
Franklin Delano Roosevelt, for example, also used a "state of emergency"
as an excuse to violate the Constitution and the rights of many Americans. In
March of 1933, our country was in the midst of the Great Depression. Arguably
one of the worst periods this nation ever saw. FDR gave himself extraordinary
powers to deal with that emergency.
Unlike Lincoln's however, FDR's was never terminated. Since March 9, 1933, we
have been living in a declared state of national emergency. A strange proposition,
to be sure. You'd think that, had an emergency lasted for seventy-four years,
the level of terror and destruction would have been much higher.
An emergency is defined as a "sudden" or "urgent" event.
If it lasts more than seventy years, it may be a horrible way to live, but it's
not an emergency anymore. At that point, it has become the norm.
To make a bad situation worse, and drive the point home, we are actually living
under more than one declared state of national emergency. When your country
is, in fact, suffering through FOUR emergencies, you'd think people would be
building bomb shelters, not throwing the Frisbee down at the local park.
Let's look at these "emergencies."
March 9, 1933: Franklin Delano Roosevelt declares a state of national emergency.
The emergency in question was the Great Depression. The Depression is over.
The state of national emergency has not been terminated.
December 16, 1950: Harry S. Truman declares a state of national emergency. The
emergency in question was the Korean conflict. That conflict is over (though
new Korean conflicts may be in the not-too-distant future). The state of national
emergency has not been terminated.
Richard Nixon declared TWO states of national emergency during his Presidency.
The first on March 23, 1970 and the second on August 15, 1971. The emergencies
are over. The states of national emergency have not been terminated.
Here is a quote from Senate Report 93-549:
These proclamations give force to 470 provisions of Federal law. These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing manners. This vast range of powers, taken together, confer enough authority to rule the country without reference to normal Constitutional processes.
Under the powers delegated by these statutes, the President may:
seize property; organize and control the means of production; seize commodities;
assign military forces abroad; institute martial law; seize and control all
transportation and communication; regulate the operation of private enterprise;
restrict travel; and, in a plethora of particular ways, control the lives of
all American citizens.
In 1933, Congressman Beck, speaking from the Congressional Record, has this to say:
I think of all the damnable heresies that have ever been suggested in connection with the Constitution, the doctrine of emergency is the worst. It means that when Congress declares an emergency, there is no Constitution. This means its death. It is the very doctrine that the German chancellor is invoking today in the dying hours of the parliamentary body of the German republic, namely, that because of an emergency, it should grant to the German chancellor absolute power to pass any law, even though the law contradicts the Constitution of the German republic.
Chancellor Hitler is at least frank about it. We pay the Constitution lip-service, but the result is the same…. The Constitution of the united States, as a restraining influence in keeping the federal government within the carefully prescribed channels of power, is moribund, if not dead. We are witnessing its death-agonies, for when this bill becomes a law, if unhappily it becomes a law, there is no longer any workable Constitution to keep the Congress within the limits of its Constitutional powers.
Now let's pick on another easy target. You'll remember that I said I don't care what Bill Clinton did in his private life. This is very true. I honestly could not care less what the President might do when he's not acting as President. If Hillary Clinton didn't mind, I certainly don't mind.
However, he did many things that I DO mind. The topic at hand is his Executive
Orders. President Clinton enacted an average of one Executive Order per week.
Some of these were Constitutional, and concerned only the executive branch of
government. Many of them were just Bill Clinton playing dictator and legislating
from the oval office.
It has been a common practice that, during his last days in office, a President
will rush to get more done before the next guy takes over. Jimmy Carter did
this like no one before, and it was long thought that no one would break his
record for the most action taken in the last days of his office. But Bill Clinton
managed to do so.
President Carter added a little less than 25,000 pages of new regulations at
the last minute.
President Clinton added an estimated 30,000 pages of new regulations at the
last minute.
And people wonder why our political and legal system has become so damned complicated!
In 2001, Bill Clinton served as President for twenty days before his term was
over. That's just a little less than three weeks. Still, in that time between
January 1, 2001 and January 20, 2001, President Clinton managed to find the
time to enact twelve new Executive Orders. That's about four a week!
Paul Begala, who was an advisor to the Clinton White House, is quoted as having
said, "Stroke of the pen. Law of the land. Kinda cool!"
No, Mr. Begala, it's not cool. These Executive Orders undermine our form of
government. Instead of a constitutional republic, these would turn us into a
dictatorship.
I do apologize for getting off on that tangent, instead of simply analyzing the Constitution, as I intended to do in this part of the book. However, I felt that it was important to establish the contrast between what the Constitution says and what the government does.
Whenever a President writes an Executive Order, just remember the Supreme Court
case of Marbury v. Madison (1803): "A law repugnant to the Constitution
is void."