A Unitary Executive
“The Executive power shall be vested in a President of the United States of America…” – US Constitution, Article II, §1
“The President of the United States shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices…” – US Constitution, Article II, §2
The Constitution of the United States was written in 1787, in a long hot summer in Philadelphia. The Founding Fathers were trying to solve the problem of governing the thirteen states, founded in rebellion against a single authority, the King of England. They were extremely wary of a single executive, so much so, that the original founding document, the Articles of Confederation, vested what executive authority it claimed into committees, rather than a single individual.
For that and other reasons, governing under the Articles was virtually impossible, so, in secret, they met in Philadelphia to try again. The same fears of a too powerful executive were represented; and even though George Washington was their model for a benevolent President, they were well aware that he would not be the only one to hold the job.
To quote Nebraska’s Senator Ben Sasse, the “School House Rock” version of American Government has the Congress passing laws, the President enforcing the laws Congress has passed, and the Supreme Court determining the Constitutionality of the laws and actions of both. This simple version is what WE all learned in school, and it is what the Founding Fathers envisioned.
It hasn’t been that way for a long time. The complexity of governing a nation the geographic size, population, and diversity of the United States has led the executive branch to gain a great deal of “operational” power. The expansion came particularly with the Civil War, with President Lincoln often acting “extra-Constitutionally” in order to preserve the Union. He used his authority as Commander-in-Chief to wage war, and do all those other things, like suspending the writ of habeas corpus, installing military governments in the South, and instituting a national draft; expanding Presidential power well beyond what the writers of Philadelphia conceived.
Our Nation then has adapted to the needs of history. The Founding Fathers saw this adapting process right from the beginning of their writings, setting as the first goal for the Constitution to “…form a more perfect union.” And while the Preamble setting out those goals are not considered “law,” they are a clear insight into the writers’ minds.
So we have continued to adapt. One of the major adaptations was after the national crisis of Watergate, when Richard Nixon as President, tried to use the Departments of the executive branch to cover-up his own criminal actions. After that was finally resolved in 1974 by the only Presidential resignation in history, internal rules were established in the executive branch creating barriers between the political White House and the law enforcement branches. The Department of Justice, while still a part of the Executive Branch, was given more independence to protect it from Presidential interference.
The backlash to this started early, with a trend in legal thought that called for adherence to the “original intent” of the Founding Fathers. By 1982 the Federalist Society was formed throughout the law schools in the United States. One of the tenets of this group, was that as the Constitution was written, the President is the absolute authority in the Executive Branch. The development of independence either through internal rules such as with the Justice Department, or through the establishment of even more detached agencies, like the Consumer Finance Protection Bureau; denies their “clear reading” of the Article II, §1. The President cannot “grant” independence, he is ultimately fully in charge.
This may all sound like legalistic trivia. But its application to the current crisis in the Trump Administration is quite serious. According to the theory, Donald Trump is effectively investigating himself by the Mueller probe. If the logic is valid, then of course he could end the investigation, fire the investigators, and conceal the investigatory results. There are “his.”
The “original intent” theorists point to the impeachment process of Congress, Article 1, §2 and 3,as the “check” on Presidential misdeeds. In addition they point to the legislative supremacy of the Congress who can grant and restrain Presidential powers. This of course, requires that Congress could act in a decisive manner, something that seems unlikely in our current crisis.
So, as Brett Kavanaugh, Judge of the United States Federal Appellate Court for the District of Columbia, testifies in the next few days to the nation, we must recognize that this is his ideology. He clearly is a “good man;” if the only test was character then he seems to be a stellar example. He also is a “bright man;” his intelligence and legal acumen is unquestioned. What is in question is the impact, intended or unintended, that this “good man” may have as the deciding vote on the Supreme Court. It can be guaranteed that he will not “change his spots” when reaching the highest Court, he has been a man of clear ideology from his earliest legal days.
So it is not really about Kavanaugh: this Supreme Court pick is about ideology. He is a “young man” at fifty-three, we can expect his impact on the Court to last many decades. With this decision, we are deciding the “arc of history” for the next half-century.
