The actions by President Obama and his recent and not so recent predecessors have expanded the power of the Executive to a level that in no way reflects the original intent of the Founding Fathers. I do not write this article to denounce all executive power. I have not forgotten that the founders established three branches of government including an Executive with limited powers granted to it. These powers are outlined clearly in the constitution and are not subject to the expansions that many modern scholars claim. These apologists for overreaches of executive power are without excuse for not condemning such executive power grabs.
The legitimate executive functions derived from the US Constitution include the following powers:
- Commander in Chief – The President acts as head commander of the armed forces. Although the Executive power here is broad, Congress still maintains the right to declare war, raise and support an army, and call on state militias. In short, the power of Commander in Chief resides with the executive but does not include the ability to declare and start wars at will.
- Head of Diplomacy – The execution of foreign policy and the recognition of foreign governments resides with the President. The Senate must ratify all treaties with a two-thirds vote, but the President maintains control over the execution of any treaty. Here again, the President must go to the Congress to obtain authorization for a treaty with another nation.
- Chief Law Enforcement Officer – The executive power to pardon is a tool which is sometimes used by the President in special cases. In this case, the President can act as Chief Enforcement Officer of the Law.1
We must be vigilant in guarding against and criticizing uses of power by the Executive that are not clearly stated by the Constitution. If we are not, the slippery slope of precedent can be applied and used in the future to justify even more radical reaches of executive power. Thomas Jefferson warned against the modern idea of a living constitution and argues in favor of a strict interpretation with original intent as the focus:
“On every question of construction [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
It is observed that Jefferson placed a high value on the context in which a law was passed. This can be referred to as the “spirit of the law” or the law’s “original intent” — what the law was understood to mean at the time of its passage. It is seldom used in current times to determine the scope of the law. Broad interpretations of law being upheld in the courts of a government are a sign of that government’s actions being well outside the bounds for which it was intended. It is a sad truth that this is what we are dealing with in the United States today. In particular, the Executive branch has been expanded beyond it’s given limitations.
Modern abuses of executive power include the starting of wars without declaration by the Congress, the use of the NSA to spy on the American people en masse, and the drone strike programs that have killed thousands of innocent civilians overseas.
The executive does not possess the power to directly declare war on another nation. This power has been stretched in recent decades to allow for the president to start a war, but the power to declare war resides solely with the congress and any starting of a conflict by the President has little precedent prior to the mid 20th century. U.S. involvement in WWI was in fact started by a declaration by the Congress as was WWII2,3. However, this precedent of Congress declaring war has not been maintained in Vietnam, Korea, Iraq, and other modern conflicts.
The NSA spying programs are an avenue that the executive branch has used to violate the privacy of innocent American citizens, generally without their knowledge. By spying on people using large collections of “meta data”, the agency has rendered the 4th amendment, our right to refuse unlawful search and seizure, practically useless. By shrouding the program in secrecy via the NSA, most Americans never knew their rights to privacy were being trampled on. The harsh treatment of whistle blower Edward Snowden after his leaks to press outlets is evidence that the government is attempting to make an example of this person that dared to stand up for his and every American’s right to refuse unreasonable searches. Snowden has been forced to leave the country and there have been those in the media calling for him to be captured and tried as a traitor. He recently gave a speech via video stream to the popular SXSW conference in Austin, TX. Snowden was asked whether he viewed government or corporate spying as more dangerous and he replied that it is the government “because government has the power to take away rights from or even kill citizens, and can moreover seize the information gathered by corporations.”4 Snowden’s actions should be viewed as patriotic; he had little to gain and much to lose by leaking information about the NSA program. His sacrifice will be remembered by current and future defenders of liberty. His actions revealed what has long been suspected: that the US government is keeping large data repositories with information about American citizens. This revelation should alarm those concerned about privacy and the right of all Americans to refuse unreasonable searches.
Another abuse of executive power is the employment of drone strikes that have been used overseas against targeted enemies without any thought to the civilians nearby who have been killed in these strikes. The United States is not officially at war with countries like Pakistan, Yemen, or Somalia, but drones are often flown in without respect to borders. This is an unlawful way of conducting foreign policy and Obama and his administration have stepped up these types of attacks. While these attacks are easier on our troops, not having to go into these countries on foot, they are in no way authorized by the Constitution or by any serious war doctrine. They negatively impact our image amongst the civilians in these countries and gin up hatred for the U.S. that is fuel for terrorist training camps. Killing civilians in countries with whom we are not even officially at war is a losing strategy in this fight. We must stand up for those that have limited ability to stand up for themselves. Those being killed in these nations are likely to be poor and from underdeveloped economic backgrounds. This type of killing without legitimate justification leaves a scar on the U.S. and neither serves to spread peace nor democracy in the world.
To summarize, our country and most of its leaders now consider it acceptable for the NSA to spy on American citizens without a warrant, for the president go to war without authorization from Congress, and to send drones in to drop bombs onto the soil of neutral foreign nations. The nation’s leaders have turned their back on what made the country into the prosperous land of liberty that we all enjoy. They favor political expediency over the original intent of the foundational document of law for this nation, the Constitution. They call for a living document and a broad interpretation but what is the case they have made for this and why should we trust politicians with such power?
I implore all of us to ask ourselves a simple question. Is the outcome better if we have too much power in the executive or not enough? Ponder this and what the lessons of the 20th century have shown us about leaders that were eager to grab power for themselves. It may seem great to have strong leadership and a powerful executive, but if there’s any lesson that has been learned from history, it is that power corrupts the individual.
2. Woodrow Wilson Urges Congress to Declare War on Germany, http://en.wikisource.org/wiki/Woodrow_Wilson_declares_war_on_Germany
3.. America Goes To War, The National WWII Museum in New Orleans, http://www.nationalww2museum.org/learn/education/for-students/ww2-history/america-goes-to-war.html‘
4. Snowden Defends Fourth Amendment, The Austin Chronicle, Monday March 10, http://www.austinchronicle.com/daily/news/2014-03-10/snowden-defends-4th-amendment/