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What is Constitutional in the 2015 State of the Union Address?

By Dr. Harold Pease

In listening to the President’s State of the Union Address one might think that he actually has the power to do what he requests. On domestic issues two old requests from last years State of the Union Address were renewed: a request for raising the minimum wage and, instead of just making the college opportunity available to all middle class Americans, he went further proposing free community college for all. Other requests included advocacy for “a free and open Internet,” which, given a recent executive order means control of it, expanded child care tax credits, improved job training, expanded paid leave, and a new tax benefit for two-income families. All this to be funded by increased taxes on the rich. He threatened a veto to any legislation that altered Obamacare or undermined his recently decreed executive amnesty. He was decidedly unclear on his request for criminal justice reform, certainly a reference to the riots in Ferguson, Mo. More federal involvement always means more federal control.

He defended his positions on Cuba and Iran and threatened presidential vetoes if Congress legislated differently. Constitutionalist had to have cheered when he seemed to lecture, the mostly Republican Congress, on what he called “rash decisions, reacting to the headlines instead of using our heads; when the first response to a challenge is to send in our military—then we risk getting drawn into unnecessary conflicts, and neglect the broader strategy we need for a safer, more prosperous world.” He called it “a smarter kind of American leadership” and seemed aimed at the so-called military industrial complex of which President Dwight D. Eisenhower warned. He saw rewriting the Authorization of Use of Military Force, which authorized the air campaigns in Iraq and Syria, as a priority but left few specifics on what that meant. He still refuses to use the term Radical Islamist Terrorists in describing the Islamists involved in the mass killing in Nigeria, Iraq, Syria and France even though while he spoke they were threatening to topple Yemen who has stood with us in opposition to al-Qaida.

The list went on and on as it does for every president Republican or Democrat, but what was different from last year is that he threatened the use of the veto rather than the threat of his bypassing Congress with the use of the “pen” through executive orders. The term executive order is not found in the Constitution and initially was 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.

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. It is very probable that, even with the approval of Congress, they would be outside the Constitution but that is a topic for another time. 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.

All measures listed in the 2015 State of the Union Address are but suggestions to Congress, which alone, as per Article I, Section I, has all law-making functions—the president has none. That said, he is within his constitutional bounds with his threat of the veto, which is likely to be used liberally.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.