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Presidency needs new Constitutional checks

By Chris Kempf
On February 7, 2013

Every high-school civics student is taught that the separation of powers in the government of the United States is a principal contributor to the stability and exceptionalism of our democracy. Unlike most of the European parliamentary democracies, wherein the legislature is supreme and all other governmental authority is derived from the Parliament, ours is designed to frustrate the oppressive designs of both the faction and the autocrat. There is no other government - or Constitution from which it is derived - that is quite like it. The past century has witnessed, however, a marked unbalancing of the balance of power in favor of the executive branch. The prospect of the United States' ascending from relatively humble beginnings in the 18th Century to undeniably become the greatest military, economic, cultural and political power that the planet has ever known may not have been outside the realm of future possibility to the founders, but they certainly had no reason to plan for such a fate in the drafting of the Constitution. As a nation, we are no longer a frontier backwater or a pawn in Europe's geopolitical games. The Constitution must therefore be rewritten to address the startling, unaccountable accumulation of power in the office of the Presidency.
Article II of the Constitution contains, aside from procedural technicalities about eligibility, election, impeachment and the oath of office of the President, four brief paragraphs detailing his duties and obligations. These Constitutional duties are: to serve as Commander in Chief of the Armed Forces, to grant pardons and reprieves to convicted criminals at his discretion, to make various nominations and appointments, to make treaties with foreign powers (though the Senate must ratify them), to give a State of the Union address to Congress and convene and adjourn that legislature "on extraordinary occasions", and to "take care that the laws be faithfully executed". That is all the framers could manage to give us. As far as the text of the Constitution is concerned, there is no further guidance offered as to the extent or limit of his powers. All of his powers not covered by the above are the result of almost two and a half centuries of interpretation and improvisation.
We do know that Alexander Hamilton, one of the authors of the formative Federalist Papers, conceived of the figure of the American President as an authoritative, masculine, decisive political actor embodying the virtue and might of the state. To be respected and deferred to, as well as to promote economic development at home and abroad, Hamilton believed that the government needed the force of a well-disciplined military at its service, commanded from the very top by an almost monarchical president. The military connotation of the presidency is explicit and necessary to Hamilton, who writes in Federalist no. 74 that "the direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority". It seems almost that Hamilton would have at the helm of his state a monarch - a term insisted upon by fellow aristocratic visionary John Adams - who would assume this great power at the request of the people.
That all seems realistic and necessary in the wake of the Articles of Confederation and the Whisky Rebellion - after all, there may not have been an America in 2013 had backwoods tax rebellions been permitted to fester like open wounds on the nation's sovereignty. But the president now commands not an unreliable militia but a massive, formidable army; not muskets but drones and nuclear missiles. Any target, anywhere on the globe is within the almost instantaneous reach of American military power. True, Congress still retains the power to declare war. True, many of our recent foreign embroilments have been conducted, at the command of the President, without any Constitutional grounding. But who is to stop him? Who has time to argue and debate and reconcile the government's separated powers when the decision to scramble fighter jets or fire nuclear missiles must be made in a matter of seconds?
Certainly not the Congress. And certainly not the Supreme Court, who ruled in 2003 in the case O'Connor v United States that "there are no judicially discoverable standards that would permit a court to determine whether the intentions of the President in prosecuting a war are proper". When it comes to military power, democracy is irrelevant. The President rules by the fiat of the moment. Barack Obama and his predecessors literally hold in their hands the fate of the human race, yet this greatest power ever given to a human is essentially unaccountable. This state of affairs should frighten us, perhaps even enough to rewrite the flawed document that has permitted it. 

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