Obama Isn’t Our Elected King, And Congress Isn’t Our House Of Lords

November 6, 2014 4

Mandeville, LA – Exclusive Transcript – Is it King Obama or President Obama? “This is the principal concern here. I think this is the principal issue of our time. Number one, Congress doesn’t know and understand and refuses to act responsibly and to discharge their oath of office. It just may be they don’t do it because they don’t know it. As a matter of fact, I’d argue that it’s likely they don’t know it. Secondly, presidents are chosen from the same gene pool and from the same pool of intellect and people that move in these intellectual circles, so why would it not then follow suit that the president doesn’t understand his own role and that the president doesn’t understand his own authority? All this makes perfect sense if you’re looking at this correctly.” Check out today’s transcript for the rest….

Begin Mike Church Show Transcript

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“The executive Power shall be vested in a President of the United States of America.” There are a number of competing interpretations of the sentence’s key phrase, “executive power.” But the dominant originalist view appears to be that “executive power” references a well-understood suite of powers that a Founding-era head of state would typically have possessed. [Mike: By the way, that is the incorrect view of it.]

of substantive powers held by the British King. In the same way that bestowing diplomatic, agency, or trustee powers conveys a specific package of powers and privileges that are useful to a person charged with those functions, it is said that vesting “executive power”—standing alone—conveys a similar bundle of usefully associated authorities. From that starting point, the most dogmatic versions of the theory derive a default rule that the constitutional President possesses the same powers and privileges as the eighteenth-century British King, except where other provisions of the Constitution either limit those powers or assign them to other actors.

Based on my ongoing research, I think the prevailing originalist view is wrong. Not just for complicated or debatable, but in fact demonstrably mistaken.

As a matter of trans-Atlantic lawyerly usage, there was indeed a term of art for the basket of non-statutory powers that were held by the British King. But that term was “royal prerogative,” not “executive power.” The Article II phrase “executive power” was a distinct authority held alongside the “royal prerogative”—and a highly specific one at that, referring to the narrow but potent role of “executing” the commands and authorizations of both common and statutory law. If my preliminary research holds up, then the accepted theory gets it exactly backwards: Article II should be understood to have granted only those substantive powers that were expressly specified outside the Vesting Clause. As for the Vesting Clause, it granted only what it said: the President’s power to execute duly promulgated laws.

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Mike: What does promulgated mean? That means that the Congress would have acted — here’s the other kicker, though. The Congress would have acted, would have acted constitutionally, and would have, enacting and discharging its powers, then would have charged the president with executing those acts and bringing them to fruition and seeing to it that they were faithfully done. That’s what the executive power would be. That’s what it should be.

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According to Mortenson, the Vesting Clause (i.e., Article II’s “The executive power shall be vested in a President of the United States of America.”) could not have been understood at the Founding to mean that the president has a broad swath of British monarch-like powers. In the late 18^th century’s linguistic context, the notion of a “the basket of non-statutory powers that were held by the British King” was connoted by the term “‘royal prerogative,’ not ‘executive power.’” If the Framers had intended the Vesting Clause to mean that the president has multiple prerogative-like powers, they would have used the technical term “prerogative,” and not “executive power,” when crafting it.

Mortenson raises an important point, but the above analysis alone is not sufficient. It does not eliminate the possibility that the Framers could have conspiratorially intended “executive power” to mean what “royal prerogative” most commonly implied, especially given that the term, “prerogative” (with its obvious implied connection to monarchial power), would not have been accepted within the Framers’ republican philosophical context. Mortenson, however, in effect eliminates this alternative explanation by showing how “executive power” also had a specific technical meaning within the Founder’s late 18^thcentury legal context:

Who says so? [Mike: Asks Pete Haworth at Nomocracy.] William Blackstone. His Commentaries on the Laws of England—famously described by Madison at the Virginia ratifying convention as “a book which is in every man’s hand”—was easily the most important legal treatise in the Founders’ America. And it is simply irreconcilable with the view of Article II “executive power” as a royal residuum.

The key to understanding Blackstone—and the profound challenge he poses to a broad substantive theory of the Vesting Clause—is his careful division of two distinct issues: first, the conceptual powers of government; and second, the specific historical English political entities between which those powers were divided. Read as a whole and in historical context, the Commentaries are strikingly clear on this point.

For starters, Blackstone’s discussion of “the executive power” cannot be understood without reference to the book-long argumentative context in which it is situated: a celebration of the rights of Englishmen and a detailed discussion of the structural political mechanisms that protect those rights. Thus, the first chapter of the book—titled “The Absolute Rights of Individuals”—celebrates the particular “liberties of Englishmen,” . . .

The second chapter—titled “On Parliament”—kicks off this explanation first by emphasizing the organizing conceptual principle that motives Blackstone’s discussion of the English constitution’s specific historical structures. He begins the chapter by describing the central problem of constitutional structure in a nation whose constitution is dedicated to liberty: the separation and distinct allocation of two different categories of governmental authority: (i) the “legislative . . . authority”—i.e., “the right . . . of making . . . the laws”; and (ii) the “executive authority,” i.e., “the right . . . of enforcing the laws”. This conceptual distinction, he immediately emphasizes, is crucial to the motivating normative concern of his work, for liberty as the central value of English constitutionalism.

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Mike: You can read the rest of this essay. Haworth does cover some of the modern interpretations of this and how they’re being applied and whether or not the framers of the Constitution ever would, whether or not they ever intended for anyone to be able to use the war-making power the way that it’s being used. This is the principal concern here. I think this is the principal issue of our time. Number one, Congress doesn’t know and understand and refuses to act responsibly and to discharge their oath of office. It just may be they don’t do it because they don’t know it. As a matter of fact, I’d argue that it’s probably probable, likely that they don’t know it. Secondly, presidents are chosen from the same gene pool and from the same pool of intellect and people that move in these intellectual circles, so why would it not then follow suit that the president doesn’t understand his own role and that the president doesn’t understand his own authority? All this makes perfect sense if you’re looking at this correctly. Haworth asks the question: Can the president initiate war? Here’s the answer. I’ve actually written about this in the past, but he gives a great explanation.

[reading]

If the Constitution gives the president power to initiate war, what should one make of the Declare War Clause that is placed within Congress’s powers in Article I, Section 8? In a perfect world it would be obvious to all that the Constitution gives only Congress the power to decide whether to initiate in the kinds of military adventures commonly conducted by recent presidents. Article I, Section 8 seems to say as much: “The Congress shall have power. . .[t]o declare war.” However, given that the Framers at Philadelphia voted to change the clause from “make war” to “declare war” in order to provide the president with unilateral war-making power when (in emergency cases) this is necessary for defending the United States (“Mr. MADISON and Mr. GERRY moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.”), a certain degree of nuance about the issue was created at the Constitution’s very inception. Such nuance, however, does not appear to have caused confusion among the Founding generation concerning constitutional boundaries. President Washington, for example, clearly understood that he and future presidents would need to obtain Congressional authorization before engaging the military in an “offensive expedition of importance.” (In 1793, Washington wrote: “The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”) However, historical precedent during the next two centuries—and the creative legal interpretations that became associated with these—eroded the Founder’s clear understanding of Congress’ Article I, Section 8, Declare War Clause. And today there are many who maintain (or operate as if they do) that the Constitution provides the president broad discretion to unilaterally initiate war.

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Mike: As I say, it’s been previously discussed many, many times here on this show. That is not he originalist or the ratified intent. Haworth writes a lot more about this, but I think you get the gist of it. The executive power is supposed to be just that, executive power; that means execute the laws. The legislative power is supposed to be just that, legislative power; it’s supposed to make the laws. By the way, what is supposed to be the judicial power? A third branch would then come in — that’s why they’re in Article III — and they would say: Okay, if the first two branches have a dispute, you can settle it. If the executive branch has a dispute with the legislative branch, this court can settle that. If the executive branch thinks the legislative branch, he has an immediate check on the power. He can veto something. So it’s not as though the president doesn’t have a check.

What about Congress? Congress obviously would have been given a check. First of all, it’s the House of Representin’ and the Electoral College that would have elected the president. That’s check number one. Check number two is that Congress and only Congress can declare a war, or only Congress can make law. Article I, Section 8 is pretty clear on this. Article I, Section 1 is pretty clear on this. [/private]

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The Supremacy Clause, properly understood, is pretty clear on this. So then, when the Congress is acting as it’s supposed to, the president can’t do the things that he’s doing. That’s the whole point.

We have presidents that act as though they’re not presidents. They act as though they are kings. You know what? We treat them like kings. They’re treated like kings. Red carpets are rolled out for him to walk down. If he decides to talk to anyone or decides to talk on any issue, doesn’t matter what it is, all the media that his present and alive on earth can be brought into service to make sure that the message is spread far and wide. We are told that we turn to the president for leadership, meaning the president gets to tell us which direction we’re going, how the economy is going to work, and all these other things. This is not any concept of federalism or [r]epublicanism that anyone that would have been alive in 1787 or 1788 or 1789, that they would have recognized. They would have recognized this as a monarchy, or, since there’s a lot of money at stake here, an oligarchy. John Taylor of Caroline County, in my new book, recognized it as an oligarchy, a tyranny of laws. That is exactly and precisely what it is.

You have an unrepentant, irresponsible House of Representatives that doesn’t do its job. You have a United States Senate that no longer answers to the state governments or to the state legislatures, which have become neutered, emasculated, basically agent states for the federal monstrosity, and then you have the president wielding the kind of powers that a king would wield. No one attempts to stop him, and when they do, it’s usually for all the wrong reasons. Then you have a judiciary that, in case the president misses something, you have a judiciary that goes behind both the president and the Congress and makes all the rest of the laws for us. They overturn precedent. They overturn legitimate, rightful acts that are passed by the people of the several states. We’re told we have to obey and abide by all this. Well, if there’s been a breach of contract and the Constitution is a compact, why do you have to abide it? [mocking] “Because you have to, because Lincoln said so.” Who cares what Lincoln said? Lincoln wasn’t in the founding convention. If we believe we’re only glued together by the Constitution, it ought to be what the Constitution says that matters, not what Lincoln said about it.

End Mike Church Show Transcript