by KrisAnne Hall, JD
Great study and deliberation was conducted in designing the office of the president. What was the designers of our Constitutional Republic chief concern? That the president would become a king.
“The safety of the people in a republic depends on the share or proportion they have in the government; but experience ought to teach you, that when a man is at the head of an elective government invested with great powers, and interested in his re-election, in what circle appointments will be made; by which means an imperfect aristocracy bordering on monarchy may be established.” Anti-Federalist #67
When creating the office of the president our founders had many things to consider. The first consideration was, would this executive purpose be best fulfilled with a committee, a tribunal, or one person. In the current climate, it was concluded that the power of the executive should be vested in one person, as an ambassador behalf of the States, to other nations. But having just thrown off the bonds of kingly rule, how could the designers of our Constitution ensure that this one person, over time, would not accumulate power and become the king they never wanted? The answer, limited and concurrent authority.
Article 2 of the Constitution enumerates the limited authority delegated to the executive. The student of the Constitution will have to admit that the power delegated to the executive is considerably less than the power delegated to congress. As a matter of fact, both Alexander Hamilton and James Madison describe the power of the president of being less than the power of most Governors of the States.
The president is intended to have very few powers and practically no autonomous power. The primary purpose of the executive is the be an ambassador on behalf of the States to foreign affairs. Therefore, the majority of the power exercised by the president must be approved by the Senate (the representative body of the States) before it becomes binding. In that limited capacity, the president is authorized to negotiate treaties with foreign governments. However, the president cannot make any treaties autonomously. Before a treaty becomes law, it must be ratified by 2/3 of the Senate and be found to be consistent with the delegation of the authority in the Constitution.
“The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description.” Federalist #69
The president is the commander in chief of the military, but only under a declaration of war by congress. The president is denied the power to declare war specifically because of this desire to prevent him from becoming a king and so America could avoid the kingly consequence of frequent wars. James Madison explained;
“The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.” James Madison to Thomas Jefferson 2 Apr. 1798
The president is authorized to nominate members of the supreme Court and cabinet, but the official appointments are a power reserved to the Senate.
“The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices …The one (the President) would have a like concurrent authority in appointing to offices; the other (the King) is the sole author of all appointments.” Federalist #69
The president is tasked with making suggestions to the Congress, he is not empowered to make demands or circumvent the legislative authority. The president is able to veto a law, but his veto can be overturned by Congress. The president is not authorized to write laws, make laws, or overturn laws that are constitutionally valid.
“The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament.” Federalist #69
Executive orders of a president are not equivalent to law, nor can they change or eliminate a law constitutionally created by Congress. Executive orders were created so the president, as the leader of the executive branch, could send orders and instructions to agencies and agents within the executive branch. Any executive order that attempts to alter or eliminate a law constitutionally created by Congress; any executive order that attempts to exercise authority over a person or a State outside the executive agency, is an unlawful executive order, contrary to the Constitution, and is therefore invalid.
The president cannot create a tax, eliminate a tax, or even raise or lower a tax, that power is reserved to the House of Representatives alone.
“The one (President) can prescribe no rules concerning the commerce or currency of the nation; the other (a King) is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin.” Federalist #69
The president is only authorized to spend the money Congress apportions to the executive branch, therefore any debt incurred by the federal government is not the product of the president, but due to the spending of Congress.
Even the autonomous powers of the president are limited. The president is authorized to issue pardons but only for federal offenses and not in the case impeachment.
“…and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Article 2 section 2 clause 1
Finally, as Alexander Hamilton pointed out in Federalist #69, the president is not authorized to make citizens out of aliens and he is not authorized to confer the benefits of citizenship on any person. These, again, are powers reserved to Congress.
“The one (the President) can confer no privileges whatever; the other (the King) can make denizens (citizens) of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies.” Federalist #69
The American colonists didn’t simply separate themselves from Great Britain, they declared independence from kings forever. Their purpose was to ensure the Blessings of Liberty not just to themselves, but to all future generations. They knew the only way to do that would be to keep the president very limited in power. Their purpose was that America would never again have a king.