the president as the senate's cat's paw -- 11/3/16

Today's encore excerpt -- from "The Founders' Great Mistake" by Garrett Epps. The description of the powers of the United States president provided by the constitution are limited and ambiguous -- so much so that some early observers thought it possible that the Senate would make the president its cat's-paw:

"According to James Madison's Notes of Debates in the Federal Convention of 1787, the [powers of the president] received surprisingly little attention at the Constitutional Convention in Philadelphia. ...

"In the end, the Framers were artfully vague about the extent and limits of the president's powers. Article I, Section 8 of the Constitution, which empowers Congress, runs 429 words; Article II, Section 2, the presidential equivalent, is about half as long. The powers assigned to the president alone are few: he can require Cabinet members to give him their opinions in writing; he can convene a special session of Congress 'on extraordinary occasions,' and may set a date for adjournment if the two houses cannot agree on one; he receives ambassadors and is commander in chief of the armed forces; he has a veto on legislation (which Congress can override); and he has the power to pardon.

"The president also shares two powers with the Senate-to make treaties, and to appoint federal judges and other 'officers of the United States,' including Cabinet members. And, finally, the president has two specific duties -- to give regular reports on the state of the union, and to 'take care that the laws be faithfully executed.'

"All in all, the text of Article II, while somewhat ambiguous -- a flaw that would be quickly exploited -- provided little warning that the office of president would become uniquely powerful. Even at the convention, Madison mused that it 'would rarely if ever happen that the executive constituted as ours is proposed to be would have firmness enough to resist the legislature.' In fact, when citizens considered the draft Constitution during the ratification debates in 1787 and 1788, many of their concerns centered on the possibility that the Senate would make the president its cat's-paw. Few people foresaw the modern presidency, largely because the office as we know it today bears so little relation to that prescribed by the Constitution. ...

"[In contrast], under the pen name 'Pacificus,' Alexander Hamilton wrote a defense of [a president's] power to act without congressional sanction. The first Pacificus essay is the mother document of the 'unitary executive' theory that Bush's apologists have pushed to its limits since 2001. Hamilton seized on the first words of Article II: 'The executive power shall be vested in a President of the United States of America.' He contrasted this wording with Article I, which governs Congress and which begins, 'All legislative powers herein granted shall be vested in a Congress of the United States.' What this meant, Hamilton argued, was that Article II was 'a general grant of ... power' to the president. Although Congress was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid. Hamilton's president existed, in effect, outside the Constitution.

"That's the Bush conception, too. In 2005, [presidential counsel] John Yoo, the author of most of the administration's controversial 'torture memos,' drew on Hamilton's essay when he wrote, 'The Constitution provides a general grant of executive power to the president.' Since Article I vests in Congress 'only those legislative powers "herein granted." ' Yoo argued, the more broadly stated Article II must grant the president 'an unenumerated executive authority.' "


Garrett Epps


"The Founders' Great Mistake"


The Atlantic


January/February 2009


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