President vs Constitution

[Pete F.]

The Unitary Executive, as put forward by Attorney General Barr, holds that presidential power over executive branch functions can only be limited by the voters at the next election, or by Congress through its impeachment power. This was essentially the position Barr took in his June 8, 2018 memo to the Justice Department. “Thus, under the Framer’s plan, the determination whether the President is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process,” Barr wrote. Although Barr does not say it, a president who acted in an improper or faithless way, but who is reelected or who escapes impeachment, could indeed be above the law. Is this really what the Framers intended?

[detbuch]

Originally Posted by Pete F.

The Unitary Executive, as put forward by Attorney General Barr, holds that presidential power over executive branch functions can only be limited by the voters at the next election, or by Congress through its impeachment power. This was essentially the position Barr took in his June 8, 2018 memo to the Justice Department. “Thus, under the Framer’s plan, the determination whether the President is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process,” Barr wrote. Although Barr does not say it, a president who acted in an improper or faithless way, but who is reelected or who escapes impeachment, could indeed be above the law. Is this really what the Framers intended?

Above what law are you talking about? A law against improper motives? A law against faithfully discharging his responsibilities? Are there such laws?

The "Framer's plan" to which Barr referred, the Constitution, is the law on how to determine if a President has transgressed his duties. If Congress has determined by impeachment and trial that he hasn't, how is that above the law, above the Constitution? And the people can decide by election if they agree with Congress's decision.

[Pete F.]

Originally Posted by detbuch

Above what law are you talking about? A law against improper motives? A law against faithfully discharging his responsibilities? Are there such laws?

The "Framer's plan" to which Barr referred, the Constitution, is the law on how to determine if a President has transgressed his duties. If Congress has determined by impeachment and trial that he hasn't, how is that above the law, above the Constitution? And the people can decide by election if they agree with Congress's decision.

The concept of Congressional oversight over the executive branch is a long-established precedent in the United States, a practice that traces back to our British roots. As early as 1792, the House established a special committee to investigate certain executive branch actions, and Madison and four members of the Constitutional Convention voted for the inquiry, indicating they thought this was a core function of the Congress. In a 1927 Supreme Court decision, the Court found that “the power of the Congress to conduct investigations is inherent in the legislative process [and] that power is broad.” It has often been the Supreme Court that has required presidents who overstep their bounds to comply with Congressional mandates. When Richard Nixon refused to turn over his tapes during the Watergate crisis, the Supreme Court ordered him to do so, leading to his eventual resignation from office.

The Supreme Court has in fact ruled twice on the unitary executive theory, and both times rejected the concept. In Morrison v. Olson, decided in 1988, the Court majority decided that the special counsel statute did not violate the separation of powers. Justice Scalia, alone among the justices, issued a scathing dissent largely along the lines of the theory of the unitary executive. “Morrison shattered the claim that the vesting of ‘the executive power’ in a president under Article II of the Constitution created a hermetic unit free from the checks and balances apart from the community,” MacKenzie wrote in Absolute Power. In 2006, the Supreme Court again issued a stinging rebuke to executive overreach in Hamdan v. Rumsfeld, a case that dealt with the use of military commissions to try terrorists at Guantanamo Bay. As Justice Breyer wrote for the majority, “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check’ to create military commissions,” and told the Bush Administration that they should seek Congressional approval, which they ultimately received.