Jason Christensen
James Crawford
GOVT 422
02/11/2024
Presidential Powers
Introduction
During the ratification of our national Charter, and for a number of years after the final
ratification; opponents to the Constitution (Anti-Federalists) were deeply concerned with the
office of President growing with power and ultimate destruction of public liberty. Anti- (1)
federalists such as Luther Martin and the potential loss of voting rights at the national level; or
for this paper, Benjamin Workman’s fear of the president using a standing army against the (2)
States and the people themselves. Were these fears warranted? To properly discuss the powers of
the President, of these States united. We first need to look at the history and the foundational
charter itself. For this paper we will dive into the historical, the Law, and our modern progressive
age; as well as the abuses weighing against the Law itself.
Historical/Legality
As we peruse , the President does not have very many powers, except U.S. Const. art. II
when it comes to enforcing the Law/laws themselves. Or to act as a check against the other two
branches of the national government; as well as being the top Commander in Chief of our
national defense We could even look towards this office as mode of U.S. Const. art. II§ 2, cl. 1.
leadership, a national figure to take national pride in, as long as it’s not idolatry of course. The
office of President has the power to make appointments to the courts, his cabinet and
ambassadors, and only with the advise and consent of the upper chamber of the legislature
(Senate) U.S. Const. art. II§ 2, cl. 2. He has the power of the pen to either veto or sign legislation
into law, as a check to the legislature . He has the power to draft U.S. Const. art. I§ 7, cl. 2
treaties for the Senate to vote upon, and meet with foreign dignities. As commander in chief, he
has the power to commission officers within the Militia, Navy, and other defenses of these
United States . His Vice-President is chosen by the President himself U.S. Const. art. II§ 2, cl. 3
(under the ). is not only next in line to the presidency, but he has the duty U.S. Const. amend. XII
to advise the president as needed; as well as acting as the President of the Senate with the tie
breaking vote . Now allow us to examine these various powers, along U.S. Const. art. I§ 3, cl. 4
with the preconceived false notions concerning these Presidential powers.
Despite my personal belief that through this method of advise and consent of
ambassadors, cabinet members, and judges; we could possibly appoint new candidates for these
positions, in order to replace the occasional bad actors. Partisan politics would crucify the
President that attempts this idea however. Similar to the politics of 1800, combined with the
media attacking President John Adams for simply heeding to this power of appointments of new
judges. What most do not realize, is that when John recommended to the Congress in his annual
State of the Union address. He recommended six judicial districts to fall under the guidance of
the Supreme Court of the country (7). Upon the passage of this Judiciary Act of 1798, John made
his appointments for those newly created judicial districts. Appointments that he felt were able
men who knew the Constitution, not based on party loyalty, and yet he was crucified for doing
his job. (3)
Throughout the years we have seen this power become abused, with presidents’ simply
adding advisors and Czars (a soviet terminology). As a society we have simply accepted this
abuse as being legal, but what does the Constitution say on the matter. Better yet what does
founding era Constitutional expert, St. George Tucker have to say on the subject, and I quote?
“But 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.”
Which means, only the Congress, can create these additional offices that the president may
appoint with the advise and consent of the Senate. (4)
Without spending too much time on all the abuses, I do need to mention the nefarious
War Powers, and the abuses of the president that involved us into the mainstream of war illegally
dating back to the fifties with the Korean War. Sure, the president is the “Commander in Chief”,
but does this give him the right to create regulations within the army (militia) itself? Does this
give him the right to mobilize fifty state militias as a national army into the main stream of war?
In short, only the Congress or the individual States has this right to either properly declares war
in , or to create regulation to the affect of training, arming, or creatingU.S. Const. art. I§ 8, cl. 11
officers. One citation of this fact is within the itself, or U.S. Const. amend. II U.S. Const. art. I§
8, cl. 9, 10, 13, 14, 15, 16. The last official declaration of war was in World War 2 against four
different and distinct enemies, as well as a brief war against Syria under the Trump
administration.
The last abuse that I would like to bring up is the infamous notion of executive orders.
Sure, many of our early and great presidents may have used these executive orders, such as
Washington himself; but the manner that they were used is completely different from what they
morphed into. In the beginning they were used as communication memos such as please acquire
such and such item for the job at hand. In later years starting with Jackson and Lincoln, and only
morphed to be even worse; these executive orders morphed into items of legislation, which only
a legislature can write and pass. One such disastrous and abusive executive order, with soviet
ideology incorporated into it, was Executive Order 10340. Where President Truman attempted to
seize control of certain companies and industries (steal industry); in order to strengthen our
military, either for our defenses or the ongoing Korean War at the time. Two years later, the court
rightfully struck him down, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Despite this case providing us a good pro-constitutional opinion; the case itself was not a
good case. In fact it was very dangerous on several different levels; allow me to explain into
three main points, with the first one being the topic of property.
Concerning this issue of property, it was mentioned that does give the U.S. Const. art. II
President power in two different clauses to seize property; and yet if we study the plain and
simple words of , nowhere permission is granted to the President to seize U.S. Const. art. II
property. Not even in 1 does it give the inherit right to seize property. U.S. Const. art. II§ 2, cl.
Let us remember the earlier lesson from St. George Tucker, stating that it is up to the Congress to
legislate when it comes to war powers, or the organizing of our armed forces. If we search the
rest of the Constitution, nowhere does the government have the power to seize property,
including . If government wants property, they must pay a fair market valueU.S. Const. amend. V
for such property. Why, is there such disconnect between the Constitution itself and this issue of
property, especially when it comes to the office of president? This case gives us much insight
regarding this question. The case stated, that the president gets his power from yes U.S. Const.
art. II, as well as the legislation that Congress passes, further condemning the President’s actions
in Executive Orders as written legislation. It is also of my opinion based on my studies, that
because Congress did start legislating the war powers ability dating back to 1798 with the
Embargo Act (which had nothing to do with seizing personal property of Americans). Courts,
society, government has been offering up false interpretations of such legislations; and the
seizure of property, having a more direct connection with the Civil war time period as well as the
previous 50 years before this case. Can the legislature violate the Constitution, in these
legislations? My short answer is no, but my explanation will be saved for a different time.
As we go back to what the court said in regards to this case, and in regards to executive
orders. The President only has his authority in the laws that Congress passes, or within U.S.
Const. art. II it-self. With President Truman seeing a need to do something, concerning the strike
of the steel workers union, he issued Executive Order 10340. In hopes of seizing most steel
companies, and continue to keep the workers working; an issue of national defense, and for the
current war effort in Korea. The reason why the court did not look at the legislation Taft-Hartley
Act was because the Congress had rejected an amendment that would have resolved any
problems with the unions, either in collective bargaining or striking. This technicality saved us
from Executive Order 10340. This technicality also provided us a silver lightening, concerning
Constitutional governance. Within the final opinion of the court, Justice Black wrote.
“The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good
and bad times. It would do no good to recall the historical events, the fears of power and the
hopes for freedom that lay behind their choice. Such a review would but confirm our holding that
this seizure order cannot stand.”
Conclusion
Out of the last hundred plus years within our country, there is not much difference
between bad decisions or good decisions. We as a society and as a government have allowed this
issue of case law, partisanship, or even at times mob rule; to dictate the affairs of the court,
legislature, and the presidency itself. Sure this case had good outcomes, but as the technicality
arose concerning the unions, the court then looked to the Constitution itself. Similar to another
recently, even though the court has not yet written an opinion on the matter; that case being
Trump vs. Anderson. In the oral arguments nothing was mentioned the fact that charges has not
been raised. A trial has not been held, there is no conviction. That Trump is automatically guilty,
and yet as we look towards the US Constitution, every person has the right of Due Process of
Law, and everyone is innocent until proven guilty. Justice Cavanaugh was the only one that
alluded to this. To focus on case law, narrative, or passed laws regardless of being Constitutional
or not is extremely dangerous precedent, precedent that we have followed for these last couple of
centuries. If only we could truly heed to the advice from Justice Marshall in his closing opinion
of Marbury v. Madison, 5 U.S. 137 (1803) as he stated.
“It is also not entirely unworthy of observation that, in declaring what shall be the supreme law
of the land, the Constitution itself is first mentioned, and not the laws of the United States
generally, but those only which shall be made in pursuance of the Constitution, have that
rank. Thus, the particular phraseology of the Constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written Constitutions, that a law
repugnant to the Constitution is void, and that courts, as well as other departments, are bound by
that instrument.”
We then at that time, can finally work on restoring the Republic and the Constitution.
References
1. Luther Martin. “Luther Martin’s Objections”. Essay, June 28, 1787. From Teaching
American History. https://teachingamericanhistory.org/document/luther-martins-
objections/ (accessed February 10, 2024).
2. An Old Whig V, Philadelphia Independent Gazetteer, 1 November 1787
3. John Adams, Doubleday & Company Inc., published in 1962, Edited by Page Smith
4. Tucker, St. George. “View of the Constitution of the United States with Selected Writings”.
Liberty Fund Inc. Indianapolis, IN. Reprinted: 1999
5. Woolley, John and Peters, Gerhard. “Executive Order 10340—Directing the Secretary of
Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel
Companies”. The American Presidency Project. UC Santa Barbara. Santa Barbara, CA.
https://www.presidency.ucsb.edu/documents/executive-order-10340-directing-the-
secretary-commerce-take-possession-and-operate-the
6. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
7. Richardson, James D. “A Compilation of the Messages and Presidents of the Presidents”
Volume 1. Bureau of National Literature and Art. (1897)
