Presidential Powers Revisited: An Analysis of the Constitutional Powers of the Executive and Legislative Branches Over the Reorganization and Conduct of the Executive Branch
Alexandra R. Harrington
McGill University - Faculty of Law
Willamette Law Review, Vol. 44, p. 63, 2007
Two hundred eighteen years after George Washington was elected to serve as the first President of the United States, the Constitutional Framers would likely be heartened to know that over a dozen people are vying for the right to run as their party's presidential candidate in the upcoming 2008 presidential election. However, these same Framers would likely be severely disheartened to learn that the powers and responsibilities assigned to the executive branch and the President of the United States - an office which these dedicated men created and shepherded through a vehement anti-constitution protest - have been eroded. Indeed, many of the key points which the Framers cited as evidence of and reasoning for the tripartite system they devised have been whittled away by constant intrusion into the powers and responsibilities of the President and the executive branch. This intrusion has become increasingly commonplace and accepted by a broad spectrum of governmental and political actors. It has wide-ranging legal, security, and societal implications which, unfortunately, are not always easily summed up in a television sound bite. Although perhaps not as glamorous or headline grabbing as the day's congressional bickering with itself and the president, the problems created by Congressional overreach into the executive branch are myriad. To demonstrate the scope and depth of these problems, there is perhaps no better question than the history and future of executive branch reorganizations with particular attention paid to the role of national security, military affairs, and foreign affairs in structuring and reorganization attempts. This article examines the history of the pre-Constitutional governmental structure used in the United States, the constitution and the Federalist papers, and presidents and Congresses from the Washington administration to the G.W. Bush administration to chart the original intent of the Framers in creating the Executive and Legislative branches, as well as the growth of each branch. As demonstrated, this growth includes many deviations from the dictates of the Framers and the strictures of the constitution. The article further examines applicable statutory provisions, executive orders and presidential directives, the use of presidential signing statements, control over the classification system for secret governmental information held by various actors, and the National Security Council apparatus in terms of their relationship to the proper functions of the Executive and Legislative branches. The ultimate conclusion of this article is that, since the advent of the CIA as an institutionalized entity after World War II, congresses of all political affiliation have sought to usurp the powers of the president over his office and the executive branch - particularly in terms of national security - regardless of presidential political affiliation or the domestic and international situations faced by the United States. This article also concludes that this precedent is dangerous and violative of the constitution, and suggests that the way to stop further erosion is for both future presidents and members of congress to understand their proper role in the constitutional system which they are and will be elected to protect and serve.
Number of Pages in PDF File: 53Accepted Paper Series
Date posted: November 12, 2008 ; Last revised: November 18, 2008
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