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The Ron Paul Foreign Policy Debate (continued): A Response from Bruce Fein about The Myth of Implied Executive Power

In this special to ConservativeHQ.com, Ron Paul presidential spokesman Bruce Fein presents the counter-argument to those who claim the president possesses vast foreign policy powers and discretion under the Constitution.

Thomas Jefferson, like all other Founding Fathers, did not interpret the Constitution to imply vast foreign policy powers to the President under Article II of the Constitution.

Congress was intended as the chief architect of foreign policy—especially in deciding between war and peace, the most significant decisions made by government. The Constitution’s makers rejected the British monarchy as the model for the presidency in the arena of foreign policy or otherwise.

Alexander Hamilton wrote in Federalist 69:  

First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.

Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.1

“The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.

President Jefferson sought and received 10 congressional authorizations to employ the military offensively against the Barbary Pirates. He, like his Secretary of State James Madison, believed only Congress could authorize the initiation of warfare.

All of the Constitution’s makers feared presidential war-making as an invitation to tyranny and perpetual war to aggrandize executive power. The Supreme Court under Chief Justice John Marshall denied presidential power in the quasi-war with France to seize ships without express authorization of Congress. See Little v. Barreme.

Jefferson advocated a strict, not latitudinarian, interpretation of the Constitution: “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

The concept of vast implied presidential powers in foreign affairs under the Constitution, for instance, power to assassinate American citizens based on secret evidence and secret law or to detain them indefinitely without accusation or charge, or to substitute executive agreements for treaties, is nonsense on stilts.

Article II, section 2 enumerates the powers of the President, including the power to appoint ambassadors.  It is absurd to imply powers under Article II that dwarf in importance the enumerated powers of the President because to do so renders the enumerated powers largely superfluous because a lesser power is implied in a greater power.

Some argue that Article II, section 1 vest “executive power” in the President, and argue every power that might be characterized as executive is thereby conferred.  But that argument likewise renders superfluous the enumeration of powers in Article II since they would all be subsumed in the concept of executive power. 

Further, Article I, section 8, clause 18 expressly empowers Congress to regulate every exercise of presidential power (“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.”).

Finally, the very idea of vast implied executive power wars with the profound fear of the Founding Fathers of a Julius Caesar or Napoleon in the White House. Supreme Court Justice Robert Jackson wrote in Youngstown Sheet & Tube Co. v. Sawyer:

I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications, instead of the rigidity dictated by a doctrinaire textualism.

“The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, ‘The executive Power shall be vested in a President of the United States of America.’ Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: ‘In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.’ If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.”

“The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And, if we seek instruction from our own times, we cannot accept the view that this clause is a grant in bulk of all conceivable executive power, but regard it as an allocation to the presidential office of the generic powers thereafter stated.

James Madison, father of the Constitution and political lieutenant of Jefferson, voiced the definitive case against implying presidential war powers: 

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.  Beside such a mixture of heterogeneous powers, the trust and temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will which is to direct it.  In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed.  It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

Hence is has grown into an axiom that the executive is the department of power most distinguished by its propensity to war; hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.

In sum, the idea of vast implied foreign policy prerogatives of the President is counter-constitutional and subversive of constitutional government. It has been concocted to operate a counter-constitutional American Empire.

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Bruce Fein is a constitutional lawyer, is the principal national spokesman for the Ron Paul presidential campaign, and is a member of the board of the Committee for the Republic
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'Nuff said

Thank you, Mr. Fein, for the education.