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Constitutional Limits on the Executive Branch

It may seem a bit out of place these days to consider the limits & weakness of the Executive Branch.  But, at this moment, the Executive Branch is facing no fewer than 3 individual scandals involving potential abuses of executive power.  So, this may be as good a time as any to take a look at the powers of the Executive Branch in context with its written Constitutional limits.

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Headed by the President of the United States, the Executive Branch is merely one of 3 branches in the U.S. Federal Government. It coexists with the Legislative and Judicial Branches.  In order to protect the liberty of the People & the States, the Executive Branch was designed to be less powerful than Congress thereby preventing our Chief Executive from acting like a king. (1*) But, based on the current news reports out of the mainstream media, how many people actually know the limits to executive powers?

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Though the most important powers in the United States of America arguably lie with the States & the People in Article V and the 10th Amendment, we will focus on the relationship between the Executive Branch and the rest of the Federal Government.  This becomes an increasingly relevant topic with an Executive Branch that may confuse its limited administrative role with that of ancient monarchs or rulers unchecked by any structured legal system whatsoever.  The Constitution establishes the legal basis for the restriction of Executive action & for this America is quite fortunate.  Incorporating the contributions from the philosopher Montesquieu, the Founders created a Federal Republic, via the Constitution, based on Separation of Powers.  History had taught Montesquieu & the founders that the Executive as well as all other individuals in power would someday challenge the legal boundaries of the office.  For this reason, Federalists & Anti-Federalists alike agreed that the Executive Branch must be limited in its authority & its role, just as the other Branches of the Federal Government should be as well.

Written within Article II of the Constitution, the limits to the Executive Branch are clearly delineated from the roles & powers laid out in Article I for the Legislative Branch (the Congress) & those established in Article III for the Judicial Branch.  According to Article II, the limited list of Presidential duties in addition to law enforcement is as follows:

  • Commander and Chief of the Armed Forces
  • Author of Treaties with foreign nations
  • Limited granter of approval or veto authority for Federal Legislation
  • Appointer of certain government officials including ambassadors and judges

All things considered, these powers are weakened without the power to fund itself or judge itself. Without funding, the Presidential agencies & organizations would not be able to perform the functions the President had ordered.  Without the ability to judge itself, it remains accountable to the legal interpretation of others.  So, if Executive power is placed in the correct light, everything becomes an issue of how far Congressional oversight and external legal forces will allow the Executive Branch to go.  Constitutionally, the Executive Branch may make no law, pass judgment, or subvert Constitutional provisions including those protected by the 10th Amendment such as State Laws.  Under American Law, the President is pretty much like every other American citizen. The President is still accountable to Constitutional law like everyone else, but, simply works a much more stressful job on a world stage.

After looking at the basics of Constitutional law & the limits it places on Executive power, perhaps we have asked the President to do too much.  If the President may only do what Article II permits, then this limited role seems to contradict the modern expectations of the office.  The President can make no policy contradicting the Constitution or Constitutional Legislation out of Congress.   And, if Congress should deem Executive action inappropriate and subsequently remove funding, is there anything the President could legally do to fight back if the Constitution still remains law?  The People can always try to solve their own issues locally & constitutionally, but that hasn’t really been the case in the past hundred years.  Are we not to blame if we expect the President to do more with the supposed power of the office than is legally prescribed?  We can either expect the law to limit the Executive & all officials or we can use the model of the past century where we demand the President fix everything while promoting more of the same behavior that brought us to the present-day condition of the IRS, the DOJ, & the EPA on the evening news.  Which way does America turn?

  1. Federalist Papers Nos. 67-77 Discuss the role & limits to the Executive Branch
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  • http://grumpyelder.com/members/contra1/ Contra1

    Nice article/post Mal. Now all we need to do is forward the memo to the illegitimatre bastard in the WH. My vitriol aside your specific point makes for a great question to put before Congress and any other sentient being that cares for the country.The executive branch has been getting out of hand for awhile now.

  • http://grumpyelder.com/members/mal-partisan/ Mal-Partisan

    Honestly, this is the stuff we should be sending up to our Representatives & our Senators. Additionally, our State Govts should understand this as well. They should be willing to legally defend their Citizens against the Federal Government if the Constitution is still the law. No other entities besides the sovereign States of this Federation have the power to stand up to the Federal Government to prevent their citizens from being subjected to unconstitutional behavior from any branch of the US Federal Government.