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History

Essential Question: To what extent is an


increase in presidential power justified?
Throughout the year, the class has discussed the
extent to which an increase of presidential power is
justified. Much of the focus has centered on
executive powers increasing when Congress and the
President are from different parties and theres a
potential for stagnation (or stalemates), when our
government is seemingly getting nothing done.
Maybe these moments really need to happen and
should not be avoided. Maybe it is in these times of
stagnation that our politicians need to take pause
and evaluate and reevaluate what is happening.
Maybe this is the kind of thing our Founding Fathers
anticipated when they came up with the Constitution
as a way to further the idea of checks and balances
in our political system. If we give in and believe that
a dissenting opinion is a bad one, we run the risk of
being herded along down a path that varies with the
wind (or the presidential administration). Our
Framers knew the dangers of a tyrannical
government and they constructed the Constitution to
help guide us from such a state. To what extent is an
increase in presidential power justified? Never. The
Constitution defines official powers and sets up the
framework for a political system that operates with
checks and balances to those powers and any
increase in those powers is starting down a
dangerous path to the tyranny our Founding Fathers
warned us against. There is no greater example, in

my lifetime, of the dangers of an increase in


executive power than that of what has happened
with the executive power since the happenings on
September 11, 2001.
Thomas Jefferson wrote, "A tyrant is unfit to be the
ruler of free people." (Text) He and our Founding
Fathers understood the importance of a system of
checks and balances to prevent a government that
rules from a single interest. They understood that
democracy comes from a government that rules to
protect the Constitution and for the good of its
people. By design, the system should have a
decision-making method and a system to check the
method. The Founding Fathers' vision could be
achieved through the division of power between
entities - the President, Congress, the Senate, and
the Supreme Court. While every system inherently
has flaws, with such a system in place, when
problems arise, there is a way to course correct and
make things right.
There is a hitch - the governed must be aware of
when the system is breaking down. It stands to
reason that as a society grows, its issues get more
complex, especially when one of the social issues is
terrorism. It is relevant to ask in light of a terrorist
act, to what extent is an increase in presidential
power justified. Given the current state of affairs in
this country, instead of expanding the power of the
Executive Branch further as a way to handle
increasingly complicated domestic terrorist issues,
the politicians in the U.S. might better serve to
improve the "checks and balances" our Founding

Fathers had in mind in an effort to bring U.S. politics


back to the system it was meant to be - a system "of
the people, for the people."
Article II of the Constitution, also known as the
Executive Order, is what establishes the power of the
President. It gives power to the president and limits
it. Some of the powers are spelled out, but the
Article is vague and leaves room for interpretation.
That vagueness allows for expansion of power when
needed and a limiting of power when warranted.
This is reasonable depending on the circumstances
encountered during a presidents term. It was not
meant as a way for the executive branch to exploit
its power, perhaps it was just meant as a way to
make course corrections, quickly if need be. There
was simply no way for our Founding Fathers to
anticipate every situation a president may
experience.
The checks and balance system of the Congress and
Supreme Court can limit a president's power; but
authorizations by Congress and expressed powers in
the Constitution can also expand presidential
influence. There has been an age-old debate whether
the president's power should be subordinate or coequal with that of Congress. That may have been
exactly what the Founders had in mind to breathe life
into what could become a stale system if one side of
the debate takes hold for too long. There may be
presidential terms that tip the scale one way or
another, but in the grand scheme, it is the check and
balances that keep it from being tipped to one side
for too long. Case in point is President Nixon and

Watergate. He tried to exercise an element of his


presidential power to a limit that went too far
(usurping Congress power) and the Supreme Court
kept his executive powers in check. It is how the
system should work.
Article II goes further as it gives the president the
specific power to command the armed forces, make
treaties, approve or veto acts of Congress, call
special sessions of Congress, send and receive
diplomats, and "take Care the laws are faithfully
executed." These express powers give the president
a very large sphere of influence, especially when
combined with provisional powers granted the
president in the Constitution. These provisions, with
the added power the President has as chief legislator,
with veto power, give the president an enormous
chunk of the power in government. But, there have
been instances in recent times when the power
exercised by the executive branch have not been
brought into check and allowed an expansion of
power of the executive branch to the likes we have
never seen. Examples are President Bushs use of
signing statements in his term to avoid vetos and
cause stalemates, his attempts to declare war
without Congressional approval, his military tribunals
of civilians, and torture of Guantanamo prisoners.
Since the Philadelphia Convention of 1787, the
debate has continued whether it is better to have a
subordinate or co-equal President to Congress. The
fact that the Framers allowed for a president that can
be chosen independently of Congress already shows
a favor towards a co-equal executive; however, they

also gave us a system of checks and balances,


indicating that their leanings were not towards an
executive who would surpass the powers of
Congress. That would have leanings toward tyranny.
Our government does have measures to ensure a
broader division of power, but even that can get sidestepped. Congress sets up, and creates the
standards of the policy or law, but it is the executive
branch that has power to administer how that policy
is carried out or implemented. It also includes
interpretation of the law, which can vary from
president to president. This includes any federal
policy or law, which includes education, immigration,
terrorism, gun laws, minimum wages, social security,
and taxes to name a few. This means that anything
coming from the federal level, the president can
have a "say in" how it's carried out. The Constitution
(albeit indirectly) and Congress are the source of the
Ordinance of power for the President to create
Executive Orders, which have the same effect as law;
thereby giving the President the power to create
laws. The President's influence can have a farreaching arm and he can use that to expand his
power more or gain political support when he needs
it.
There are other factors, although not expressed
specifically, that allow for the expansion of the power
of the Executive Branch. Some of these factors
include mass media (and the presidents appeal);
leadership roles in federal governments policies; the
centralization of power in one man (versus 100
Senators and 435 Congress people); the

simplification of management when everyone in the


executive branch works for one man; the amount of
staff the president has; and the fact the president
implements federal programs, which increase daily,
the way he deems necessary. People look to the
president for leadership as federal government
influence and regulation increases in areas like
transportation, education, healthcare,
communication, and employment.
Through this past recession, people have been
looking for growth in the job sector. But, are we
paying attention to where much of that growth is
happening? The creation of government jobs may be
creating a sort of false sense of economic recovery,
but it is also doing much more. It is creating a
population that is dependent on government growth
for a paycheck and it is creating greater
governmental control and support for presidential
decisions by creating a kind of herd mentality that
rarely questions the government at the risk of losing
a paycheck.
Probably the one factor most notable in the past 20
years that has allowed for tremendous growth in
presidential power is during times of crisis and war,
when people look to the president for leadership to
navigate through those times. People will surrender a
great deal to get through a crisis or war, and if it is
expansion of power that the administration in charge
seeks, it will get it. President Bush and Vice
President Cheney showed just how to do that. And
the administration used fear to get even more power.

The events of September 11, 2001 changed the way


this country views terrorism; it brought the reality of
it to our home soil. The events were so jarring to the
American population that everyone was looking for a
leader to guide them. That is an opportunity for
government to do really good things, or not do
good things and it is important not to let the events
cloud what is really happening. One person who has
had his eyes wide-open watching our government
since these events, who has been a stalwart
protector of the Constitution is Judge Napolitano. He
recognizes, The Constitution of the United States
does not grant rights but rather recognizes their
existence, guarantees their exercise, and requires
the government to protect them. (Napolitano
Constitutional Chaos p. xv) And Judge Napolitano is
vocal when government oversteps its power,
especially in regards to the events of 9/11.
In Napolitanos book, A Nation of Sheep, he steps
through how President Bushs administration took to
the decimation of the Constitution like no other
administration. Granted, there are examples
throughout history where presidents have attacked
the Constitution, but the Bush Administration did so
with the opportunity 9/11 gave it. A perfect example
of how the executive offices power can be altered by
the agenda of the president that holds it.
Images of President Bush as protector of this nation
following 9/11 were everywhere. His speeches
centered on protecting this nation from the evil
doers. His agenda did not include a declaration of a
war on al Qaeda, it included a War on Terror. One

of the limits to presidential power is that the


Constitution does not grant the president the power
to declare war. Only Congress can declare war. But,
the president has at his disposal several ways to
deploy military forces as the Commander in Chief.
President Bush used not only his power to implement
how the U.S. handles terrorism; he was able to
expand his influence indefinitely through the passing
of the 342 page bill Uniting and Strengthening
America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 or
USA PATRIOT Act or Patriot Act - and all of the
Executive Orders that followed. (Napolitano A
Nation of Sheep p. 67) And he was able to get
those things passed under the guise of reassurance
and protection. Protecting the citizens from terrorism
is a good hashtag, but problems arise when an
administration justifies anything it does as beyond
reproach because it is protecting its people. And as
benign as President Bushs statement, Either you
are with us, or you are with the terrorists, might
have seemed at the time, it set the stage for a nonquestioning environment in our checks and balance
system, where to question risked the label terrorist.
(Napolitano A Nation of Sheep p. 65) There is a lot
of territory (or not) between the us and the
terrorists, it depends on the definition of us. It is
not the job of the president to protect its citizens; its
job is to protect the Constitution and Judge
Napolitano is a fierce protector of the Constitution.
Everything is in place to afford the president the
power he needs to get the job done. Everything is
also in place to make course corrections as needed

and expeditiously if necessary. Like every good


checks and balance system, there are ways and
means of getting around "red tape." The intention is
to allow for a streamlining of the process when time
is of the essence or when a decision needs to be
made. Unfortunately, it also creates loopholes. And
for any politician with an agenda, loopholes will be
exploited. How does a president do that to expand
presidential power and influence? Executive Orders.
What the Bush Administration did during its term in
office exemplifies what our Founding Fathers warned
against. This administration used everything at its
disposal to expand the power of the office. The
events of 9/11 (and other crisis events like Katrina)
helped this office exploit fear, use executive orders
(to surpass Congressional oversight), and dismantle
U.S. citizens rights with few of its citizens the wiser.
The way the Patriot Act even passed in Congress is
questionable.
The American public was reassured that the Patriot
Act was vital for their protection from Terrorism.
Even when questions arose, they were often
dismissed as give a little, to get more. Sure,
people will have to give up certain rights, but at
least they are more protected from terrorists. The
bill passed in the Senate with little debate. The
people demanded something be done, and with that,
our government was going to make sure something
was done. With only 2 senators having read the
entire document before the vote, it is hard to defend
the idea that our senators knew exactly what was in
the lengthy, complex bill. Added to that, the bill was

changed 15 minutes before the vote by the House


Leaders. Therefore, not a single House member
read the bill in full before voting. But, the bill passed
with overwhelming majorities in both houses of
Congress. (Napolitano A Nation of Sheep p.67)
There goes our system of checks and balances.
There has been a lot in the news about the National
Security Advisory (NSA) and their questionable
surveillance of sovereign leaders in this country.
Well, the Patriot Act afforded our government the
right to do all of that. As distasteful as that sounds,
our government now has the authority to watch
whatever its citizens do with little to no impunity. It
may just suffer from some bad press for a couple of
weeks. The contents of the Patriot Act amend at
least fifteen separate federal laws including the
Foreign Intelligence Surveillance Act of 1978 (FISA)
and the Electronic Communication Privacy Act of
1986. (Napolitano A Nation of Sheep p. 68) As a
matter of fact, despite its name alluding to
patriotism, this act gives the executive branch a
tremendous amount of power power that goes
without Congressional review and operates with
virtual immunity from judicial review. (Napolitano
A Nation of Sheep p. 68).
Sections 213, 215, 216 and 805 of the Patriot Act are
most egregious. These sections grant the
government the power to search and seize its
citizens belongings, usurp its citizens right to
defend themselves against such searches, surveil
whatever the government deems appropriate
(including personal records private of public)

without a warrant and without showing probable


cause, and intercept anything it wants on the
Internet. Section 805 criminalizes free speech.
Section 805 gives our government the power to
prosecute anyone who provides, advice or
assistance derived from scientific, technical, or other
specialized knowledge to anyone the government
deems a terrorist or terrorist threat. (Napolitano A
Nation of Sheep p.71) That means any expert
doing his/her job without any ties to terrorists or
terrorist groups are at risk if a terrorist uses their
specialized knowledge. Summed up, the
government can now lawfully prosecute those whose
speech and ideas it hates and fear. (Napolitano A
Nation of Sheep p.71)
With all of the things in place to give the president
power, and all the back-door ways the president
can get around his limits of power, it seems like any
extension of power of the executive branch is a move
towards a totalitarian rule. Throughout time,
warnings have emerged of tyranny in government
through literature and from politicians themselves.
Eisenhower warned us to "beware the military
industrial complex." Are we wary? If a simple act of
terrorism can alter a democratic government
structure to the extent of creating a more totalitarian
rule, that act had more power in the aftermath than
it should have. The response to 9/11 did not seem to
strengthen our resolve towards democracy, it seems
like it rattled democracy at its foundation.
People liberally throw around the term Orwellian in
regards to what they see happening in politics right

now. When Orwell warns us of the pigs who do not


actually work, the only thing they do is direct and
supervise the others and when those same pigs
come up with all the resolutions, and the other
animals couldnt think of any, he is offering us a
cautionary tale of trusting a government that puts
forth rules which do not apply to the rule-makers.
(Animal Farm) Orwell also warned us of a
government that creates a lot of Ministries, like the
Ministry of Peace, Love, Truth and Plenty; stating it is
the Ministry of Love that is the scariest with no
windows and armed guards wearing black. Not every
expansion of government is for the good of the
people and the name of that administration could be
as misleading as the deeds.
As government grows and its responsibility as a
regulatory system increases, it stands to reason that
the Congress would have the authority to pass off
some of the duties to the Executive branch as a way
to lighten the load. Congress passes the laws and
can give it to the executive branch to implement it.
But, if Congress fails to keep the President in check
on how he implements, interprets, and executes
those laws, the system of checks and balances has
broken down.
The discussion goes well beyond simply allowing for
increase of executive power to avoid stagnation in
the government. The discussion needs to center on
what happens in our government if one part of the
system gets too much power over the other parts.
The discussion needs to center on what happens to
the Constitution when executive powers are

increased. Our president has a job expressly


written in the Constitution in Article II, Section 1,
Clause 8 I do solemnly swear that I will..to the
best of my Ability, preserve, protect and defend the
Constitution of the United States. It is important as
citizens that we insist our government protect the
Constitution and the rights it gives our citizens and
not confuse that with using our government to
protect us, allowing us to become subordinate to a
government that is there to serve us. Thomas
Jefferson warned that absent a revolution, it is the
inevitable nature of things for governments power to
increase and for the liberty of the individual to
decrease. (Napolitano, The Constitution in Exile p.
239) Jefferson did not see the events of September
11, 2001 happening so many years ago, but he had
the vision to know that things will happen and
government will try to expand its reach further and
further and we must not let it at the expense of the
Constitution.