By Dr. Harold Pease
In listening to the President’s State of the Union Address one would think that he actually has the power to do what he says should be done. He eloquently suggested a federal role in: curbing obesity, making the college opportunity available to all middle class Americans, partnering with local government “from homes to marriage equality,” and improving transportation. Added to the list was streamlining bureaucracy, building two “hubs” for economic opportunity (he wanted Congress to add five more) presumably in places like Detroit, unleashing funding for inventions, and preserving more “pristine federal lands”(code for confiscation). He wants new emission standards for trucks and enlarged federal standards for air quality, new jobs training programs, and a restoration of unemployment insurance. In education he wants his “Race to the Top” program accelerated and high school curriculum redesigned. He wants to impact the work place more (whatever that means), raise the minimum wage to $10.10, create “My RA’s a new savings bond for everyone” and IRA’s on the job.
The list went on and on just as it does for every president Republican or Democrat, but what was different this time was the threat of his bypassing Congress with the use of the “pen” (an obvious threat of the use of executive orders) where he felt he could. He promised to unilaterally raise the minimum wage for federal employees and his threat to do it, alone, must be taken seriously because he did just that on immigration and Obamacare law. We have never had a president who boldly promised to make law if the Congress failed to do so.
Unfortunately most, if not all, of these things are not in Article II of the Constitution nor have they been added by way of amendment as outlined in Article V of that document, thus they are unconstitutional. Presidents, in their thirst for power and /or proclaimed expediency, have empowered themselves to the point of “kingship” with their worshipful, unchallenging, party followers (whether democrat or republican) quite willing to look the other way as government grows beyond its ability to be constitutional or efficient. At any time he could remind the people of his real constitutional powers but he will not as that would drastically reduce his power that is beginning to look limitless.
We must return to the Constitutional powers of the President as identified in Article II. As we list these powers attempt to match the State of the Union requests wherein he suggests that he might have a role. Under the Constitution the president has but eleven powers. Let us identify them: 1) “Commander in chief of the army and navy of the United States” including the militia when called into actual service of the United States; 2) supervise departments (cabinet), each presumably established by the Congress (George Washington had but four); 3) grant reprieves and pardons; 4) make treaties with the help of the Senate; 5) with Senate help appoint positions established by law such as ambassadors, ministers and judges; 6) fill vacancies “during recess of the Senate;” 7) make recommendations to Congress on the state of the union; 8) convene both houses on special occasions and handle disputes with respect to convening; 9) receive ambassadors and other public ministers; 10) make certain that “laws be faithfully executed;” and, 11) “commission all the officers of the United States.”
Simply stated the president has two supervisory powers over existing organizations and two shared powers with the Senate, otherwise he pardons, recommends, appoints and entertains. That is it! Notice the absence of power to make any rules and regulations on us. This is the job of Congress alone.
Obama threatens a role by way of executive order, the use of the pen to accomplish the items in his address, as kings or dictators do. The term executive order is not found in the Constitution. Executive orders were initially nothing more than inter-departmental communications between the President and his executive branch with him requesting some action on their part. Constitutionally they have no law making function. Congress must reign-in any executive that uses them to make or alter law. Article I, Section I clearly gives only Congress law making power. Impeachment is a proper response for any president who subverts or threatens the separation of powers doctrine, as his oath requires that he “preserve, protect and defend the Constitution.”