“We start therefore with a strong presumption that the Second Amendment right is
exercised individually and belongs to all Americans.”
— Justice Antonin Scalia writing for the Supreme Court in 554 U. S. ____ (2008)
Which branch of our government should be the most powerful?
Published Wed, Apr 11 2007 11:36 AM
That's the question that was posed by Karl to the bloggers at NWBloggers.com some time back. As far as I know, none of us ever submitted an answer to the question.
[Update: It turns out it wasn't Karl that made the suggestion. It was Playing Possum from NWBloggers.com. My apologies to Possum.]
I've been thinking about it for a while now, and I've decided to post my answer here.
I've frequently heard it said that all three branches of the government are essentially equal, and that a system of checks and balances was instituted to prevent any one of them from becoming too powerful. I don't quite think that's true though.
Yes, it's true that each branch of the government is invested with specific powers that the other branches are not. Yes, it's true that there is a system of check and balances built into our Constitution. It doesn't follow though that each branch is, or was intended to be, equal in power to the other two branches.
I believe that the founding fathers intended for the legislature to have the most power in our republic. That's pretty much the way things appear to be structured when you analyze the Constitution anyway.
In fact, I think that the founding fathers actually used the order in which the various branches are defined in the Constitution to also express what the relative power of each branch should be. That means that I believe that the founders intended for Congress to have the most power, followed by the President, and finally by the courts.
The Congress is comprised of two houses, the House of Representatives and the Senate. As originally laid out in the Constitution, the House of Representatives was intended to represent the people of the United States, and the Senate was intended to represent the several States.
The very first specific power granted by the Constitution was granted to the House of Representatives, and that is the power to originate bills to raise revenue. This is an important power, and I believe it is the first power granted because it is granted to the people's representatives. One of the principal causes of the Revolution was the concept that taxation without representation was an abuse, and I believe the founders granted this power first because of that concept.
The second specific power granted by the Constitution is also granted to the House of Representatives, and that's the power of impeachment. This power is only granted to the House of Representatives. The power of impeachment is the power to accuse an office holder of wrongdoing.
The third specific power granted by the Constitution is the power to try impeachments. That power is only granted to the Senate. When an office holder is impeached, if they are convicted by the Senate, the punishment can include removal from office. Even worse, the punishment may also disqualify the convicted from ever holding an office of trust or profit under the United States again, and this disqualification cannot be removed, even by a Presidential pardon.
The power of impeachment is the ultimate political power in our government. It's a power that is reserved only for Congress, but it affects every office, in every branch of the federal government. Of course the removal of an impeached official can only occur upon conviction, but since the power to try impeachments rests with the Congress, the Congress can remove the President from office. Congress can remove the Chief Justice of the supreme Court from office. The Congress can remove any official from office.
This is the ultimate check in our system of checks and balances. Neither the executive branch nor the courts have any power to compare to it.
The Congress has other powers over the executive branch and the courts beyond the power of impeachment. First among these, the Congress can, under certain circumstances, choose the President and the Vice President. This can happen if, as the result of a Presidential or Vice Presidential election no candidate receives a majority of electoral votes. This has never happened, but the potential does exist.
The 20th amendment to the Constitution provides still more cases where Congress can choose the President and Vice President. If after an election has been decided, but before the Presidential term begins the President elect and the Vice President elect both have failed to qualify for office then Congress can provide by law for this case and declare who shall act as President, or determine the manner in which the person to act as President shall be chosen.
Finally, Congress can also provide by law for the case where, when the right of choice falls to the House of Representatives or the Senate any of the people from which the House or the Senate is to choose dies.
So not only can Congress remove a sitting President, they can also, under certain circumstances choose who the President shall be.
A lot has been said about the power of the President to veto an act of Congress, and it's not an insignificant power. Congress can still override a Presidential veto however. It's not easy, but it can be done, and it has been done in the past.
Congress even has some power over the powers granted exclusively to the President. The President is the Commander in Chief of the military forces of the United States. The President has the power to make Treaties, to nominate and appoint Ambassadors, Cabinet Secretaries (other public Ministers and Consuls), Judges and all other Officers of the United States (except where the Constitution makes other provisions). These powers are all tempered by the power of the Congress though.
Military appropriations cannot come from the Executive branch. They can only be authorized by the Congress, and only for a maximum of two years at a time. This can put quite a restraint upon the President's power over the military. Further, even though the President can make treaties, it requires two thirds of the Senate to confirm them, and only Congress can declare war.
Every appointment power of the President is limited by Congress as well. The appointments of Ambassadors, Judges, Cabinet Secretaries and other Officers are all subject to the approval of the Senate. It is only when the Senate is in recess that the President can make these appointments without its approval.
The President can make some appointments without the Advice and Consent of the Senate. This is limited to inferior Officers, and still subject to the Congress' choice. Congress can choose to vest the Appointment power in the President alone, or in the Courts, or in the Heads of Departments.
Essentially no power of the President is not in some way tempered by the power of Congress, primarily by the Senate. None of this says that Congress has absolute authority over the Executive branch of the government though.
As mentioned earlier, the President can still make appointments without the Senate's approval. If necessary, the President can appoint someone to every vacant office in the land during the Senate's recess. These appointments are limited in duration. They expire at the end of the Senate's next session. The tricky bit there though, is that at the end of the Senate's next session, he can re-appoint the same people to those offices if he so chooses, while the Senate is in recess.
The President's power over the Congress is essentially limited to this recess appointment power, to the limited power of the Presidential Veto, and to the ability to convene both or either Houses of Congress in extraordinary circumstances, and to adjourn them if they disagree with one another about when to adjourn.
The powers granted to the President are not granted to the Congress though. Congress cannot make treaties. Congress cannot appoint Ambassadors or other Officers. Congress does not command the military. Those powers are still reserved to the Executive branch alone.
As mentioned before, Congress also has significant power over the Judicial branch of our government. Congress, not the supreme Court, has the power to ordain and establish inferior courts. Congress can impeach Judges and upon conviction, remove them from Office. Except for cases involving Ambassadors and Officers of the United States, or cases in which a State itself is a party, Congress also has the power to restrict the jurisdiction of the courts.
The Congress is even granted the power to alter the Constitution, although it doing so is incredibly difficult. If two thirds of both Houses of Congress propose amendments to the Constitution and those amendments are approved by three quarters of the states, or by conventions in three quarters of the states, depending upon which ratification mode the Congress chooses, then those amendments will become part of the Constitution.
The only other way a constitutional amendment can be proposed is when the legislatures of two thirds of the states apply to Congress to form a Constitutional Convention to propose amendments. Ratification of those amendments still requires three quarters of the states or of conventions in the states, depending on how Congress chooses.
This process doesn't involve in any way the Executive branch or the Judicial branch of government. The process is under the exclusive control of the Congress and the states.
I think it should be clear from the foregoing that the founders believed that Congress should be the foremost branch of government in the United States. All legislative power is vested in the Congress, and the Congress has been granted powers over the other two branches of government that are not matched in any significant way by the powers the other two branches are given over the Congress.
There are some that believe that the courts have become the most powerful of the branches of our government. I believe that certain Judges and Justices have come to be of this opinion as well. This "power" rests upon the ability of the courts to interpret the Constitution, a power which is not granted to the courts by the Constitution.
That the founders did not intend for the courts to have this power seems clear. For one thing, if the founders had intended to grant this power to the courts, I believe they would have explicitly granted it. They did not. Further, the founders expressed in their public writings the fear that the courts could become a de-facto government if they did acquire that power.
Alexander Hamilton wrote in the 81st of the Federalist Papers "[T]here is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution." I think it's clear from the way the founders structured the Constitution that they wanted the Courts to have the least power of all three of the branches of our government.
Considering the way things seem to be these days, especially with the courts taking unto themselves the power to interpret the Constitution, I would say that the founders intent has been violated. We really need to return to that vision.
Comments (3) | Trackbacks (0)
Wednesday Hero - SSgt. Keith Maupin
Published Wed, Apr 11 2007 1:00 AM
This Weeks Solider Was Submitted By Lt. Schneider
24 years old from Batavia, Ohio
Army Reserves 724th Transportation Company
MIA Since April 9, 2004
Strength, perseverance and determination is how you would describe the family of SSgt. Keith Maupin. Because even though their son has been missing now for almost three years, his parents still haven't given up hope that he's still alive. Said his father, Keith Maupin, "I'm saying it ain't over till the fat lady sings and when she sings, I'm going to choke her. That's what I say. They're going to find Matt." His mother, Carolyn, was quoted as saying, "We're to keep our hope up. And praying until they can prove to us 100 percent either way. And that's what I'm going to do. And I realize we only have a 50/50 chance here, but I'm not going the low road. I'm going the high road"
SSGt. Maupin, who was PFC. Maupin when he was capture and has since received two promotions, was reported MIA when his fuel convoy came under attack near the Baghdad International Airport. Along with Maupin was Sgt. Elmer Krause and seven employees of U.S. contractor Kellogg, Brown & Root. All of whom were either rescued or escaped. Seven days later, on April 16, Al-Jazeera aired a video tape of Maupin in which he was forced to admit that he was went to Iraq unwillingly. Then on June 28, 2004, Al-Jazerra reported that PFC. Maupin had been executed by a group calling themselves Persistent Power Against the Enemies of God and the Prophet. But no concrete proof has surfaced either way.
His parents have created a website called Yellow Ribbon Support Center if you would like to check it out. And while most in the media have forgotten Keith Maupin, Wednesday Hero hasn't.
These brave men and women sacrifice so much in their lives so that others may enjoy the freedoms we get to enjoy everyday. For that, I am proud to call them Hero. We Should Not Only Mourn These Men And Women Who Died, We Should Also Thank God That Such People Lived
This post is part of the Wednesday Hero Blogroll. If you would like to participate in honoring the brave men and women who serve this great country, you can find out how by going here.
Comments (0) | Trackbacks (0)
Mid week open trackbacks
Published Wed, Apr 11 2007 12:18 AM
Technorati Tags: Open Trackbacks
This open trackbacks post is for April 11 , 2007.
If you have something interesting you'd like to share, feel free to link it here and leave a trackback.
Just remember the trackback policy.
For the best exposure, go to the blogger's oasis and use the linkfest chooser to choose the posts you'd like to hook up with.
Comments (1) | Trackbacks (22)
Right Pundits trackbacked with "Sham Duke Lacrosse Case is Dropped"
Pirate's Cove trackbacked with "WTW: Liz Edwards Scared Of “Rabid Republican”"
Conservative Cat trackbacked with "04/11/07: Outrage Politics"
Maggie's Notebook trackbacked with "Newt Gingrich and the Left - UPDADE"
The Amboy Times trackbacked with "PBS Cuts Documentary on Radical Islam"
Stuck On Stupid trackbacked with "Midweek OTB For April 11-12, 2007"
The Florida Masochist trackbacked with "The Knucklehead of the Day award"
nonauthoritarian eh? trackbacked with "a new plan"
The World According To Carl trackbacked with "Duke Lacrosse Players: North Carolina Attorney General Roy Cooper Proclaims Them Innocent And Drops ALL Charges"
Right Voices trackbacked with "Open Thread Open Trackbacks"
Woman Honor Thyself trackbacked with "I got ya TrutH right Here!"
Freedom Folks trackbacked with "Calling All Bloggers!"
Blog @ MoreWhat.com trackbacked with "Saying ‘No’ to Amnesty"
Shadowscope trackbacked with "Sick of Hearing About Don Imus Yet?"
The Florida Masochist trackbacked with "Call to Duty"
Woman Honor Thyself trackbacked with "Three SoldierS"
123beta trackbacked with "Propagation"
Diary of the Mad Pigeon trackbacked with "Pelosi: The Pigeon's Response"
Planck's Constant trackbacked with "UFOs, Black Holes, and the Fifth Grade"
Mark My Words trackbacked with "Thwwaaaap!"
Tao Of Defiance trackbacked with "Professional revertard Yvonne Ridley misquotes, misrepresents self."
Maggie's Notebook trackbacked with "Joe Biden Chooses His Civil Wars"
