— Perri Nelson, February 9, 2010
A bheil Gàidhlig agaibh?
Published Wed, Apr 25 2007 11:45 PM
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Published Wed, Apr 25 2007 10:07 PM
This is part three of my series of posts that presents my understanding of the intended structure of our government. As in some of my other posts, I will be including quotes from the Constitution and its amendments, as well as other references. When I do, I may emphasize a point or two in the quotes. That emphasis is not in the original documents, I've added it to illustrate my points.
The previous post in this series dealt with the executive power and Presidential elections. Another post, not from this series, dealt with the relative powers of the various branches of our government.
In this post I'd like to continue with the Presidency. In particular, I want to discuss who can be President, and the the way the Constitution provides for the United States to apply military force in the world.
Qualifications Required For Office
The qualifications required for President are the strictest qualifications defined in the Constitution. In order to be eligible to be President a person must be a natural born citizen of the United States. No other office for which specific eligibility requirements are defined in the Constitution requires this.
I'm not entirely certain why this particular qualification is required for the Presidency, but that's what the founders agreed to. I'd love to know why though. Maybe some of you can come up with the reasoning. The nearest thing I can find is in Federalist 68, where there is a strong desire to prevent foreign powers from "raising a creature of their own to the chief magistracy of the Union".
To be eligible for the Presidency a person must be thirty five years of age. Contrast this with the requirement that Senators be at least 30, or that Representatives must be at least 25. Clearly the sobriety that comes with maturity was desirable for the office.
Finally, to be President a person must have been a resident of the United States for at least 14 years. Obviously someone who has spent their residency overseas can't really be expected to be free from foreign influences. This residency requirement is also stricter than the requirement for Senators of 9 years or Representatives of 7 years.
Powers of the President
As discussed last time, the Executive power of the United States is vested in the President. This is the power to carry out and enforce all of the laws of the United States. This power belongs exclusively to the President. Congress can enact the laws, and the courts can try cases before the law, but only the President and his subordinates can enforce the laws.
The President is also the commander in chief of the military forces of the United States. This includes the Army and the Navy, and the Militia of the several States, when they are called up into actual service of the United States. The Militia of the several States is generally recognized to be the National Guard.
On a side note, the Constitution doesn't specifically authorize an Air Force, since such a military force wouldn't have been practical without aircraft. In fact, the Air Force was originally a part of the Army before being made a separate military service. The Air Force became a separate military service as a result of the National Security Act of 1947, which also re-organized the military and established the Department of Defense.
By virtue of being the commander in chief, the President has the authority to order the military forces into combat, and to direct military strategy. By virtue of being the commander in chief, the President has the authority to choose which units of the military are deployed where, including what percentage of the military is deployed to any military engagement. These powers are not given to any other branch of the government, including the Congress.
Simply being the commander in chief does not give full power over the military to the President however. The President cannot raise armies, nor can he provide and maintain a Navy. The Constitution does not give the power to call up the Militia to the President. The Constitution doesn't even give the power to discipline and regulate the military services to the President. Instead those powers are given to Congress.
Article I > Section 8
The Congress shall have Power...
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof
So the President cannot declare war, although he can take emergency military action. The President cannot raise or support Armies. The President cannot provide and maintain a Navy. The President cannot call forth the Militia, and the President cannot organize, arm or discipline the Militia. All of those powers belong to Congress.
There was some discussion about using the National Guard to enforce the borders of the United States last summer. As I recall, many on the left were objecting to the use of the Guard because the military could not be used to enforce the laws. [Update: There is no Constitutional restriction on this use of the military, however U.S. laws prohibit the use of the Military to enforce the border. Go figure…]
I would like to call your attention to this part of the Constitution. Remember, the section begins with the words "Congress shall have Power":
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
If the Constitution is the supreme law of the land (see Article VI) then that seems to be specific authorization to use the National Guard to enforce the laws. Further, using the National Guard to support the border patrol is also explicitly authorized by the Constitution. What else does "and repel Invasions;" mean? Doesn't an unauthorized border crossing by foreign nationals constitute an invasion?
[Update: While the Constitution does authorize Congress to use the militia in this way, Congress has chosen by legislation not to do so. The Congress may still at its discretion choose to use the National Guard to enforce U.S. immigration laws, but is unlikely to do so.]
I also seem to recall that at the time, the Governors of a few of the states were quoted as saying they would not release the National Guard to serve on the borders. In fact, Christine "Chris" Gregoire, the Governor of the State of Washington said in June of 2006 that she wouldn't compel any of the state's National Guard Troops to support the border patrol.
"I'm not going to force any National Guard member to go there," Gregoire said. "If I have volunteers who want to, we will support their request."
Well, based upon my reading of the Constitution, she had no right to refuse the Congress' call. Further, it is the federal government's obligation under the Constitution to protect the several States against invasion, and even under certain circumstances domestic violence. By domestic violence, I don't mean the violence that takes place in the home, but rather rioting and insurrection.
Article IV > Section 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
I've heard many people say that the military cannot be used to enforce the borders. I've heard many people say that the military cannot be used to keep the peace at home. It seems to me though that the people that say those things are wrong. Ultimately it's the federal government's obligation to do both, and the Constitution explicitly provides for the use of the Militias of the several States to do just those things, when called upon by the Congress, under the command of the President. [Update: At this time though, Congress has elected to disallow this particular use of the Military and the Militia. The Constitution still gives the Congress the ability to decide otherwise.]
In addition to being the commander in chief of the military, the President can require the opinion in writing of any of the heads of the various executive departments. Ultimately though, since the executive power resides in the President he is not bound by those opinions, but he can use those opinions as he sees fit. It might not be politically expedient to ignore those opinions, but it is his right. The executive power only resides in those departments to the extent that he delegates it to them.
The President is also given the power "to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment." Conservatives have complained about President Clinton's pardoning of Mark Rich as being politically motivated and possibly corrupt. While it may actually have been, that doesn't change the fact that it was fully within his rights to grant the pardon.
Similarly, the left loves to complain about President Ford's pardoning of former President Nixon. President Ford's pardon of Nixon was still fully Constitutional. Three articles of impeachment had been approved by the House Judiciary committee, but the Judiciary committee is not the full House. President Nixon resigned before the House could vote on impeachment, and so he was never actually impeached. If he had been, President Ford would not have been able to remove the effects of the impeachment, although he could still grant a Reprieve for the criminal offenses involved.
I discussed the remaining powers of the President in the previous post and in my post on the relative powers of the various branches of government. I don't think we need to go over that material again just now.
The next post in this series will cover the judicial Power.
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