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A President’s Purpose

“Just Say No” to Executive Branch overreach!

Key Points

Is there a way to save America and ensure justice and freedom for all? There is… if you are willing to rethink and rebuild the entire Constitution!

This article is an excerpt from the book NEW & IMPROVED: THE UNITED STATES OF AMERICA. Learn more at https://www.jpprag.com

Previously, we have made several Amendments to the Constitution to further define the role of Congress versus the role of the President. Many were about the President being able to make suggestions for law (through the Vice President) and making sure his recommendations for appointments were heard and voted on, all in specific timeframes so Congress could not abdicate its duty. Additionally, the Amendments gave the President (again through the Vice President) the ability to indict members of Congress for treason if they attempted to circumvent their Constitutional duties and roles.

There is more to this, and it begins with the abdication of duty. The aforementioned 1973 War Powers Resolution (AKA, the War Powers Act) allowed Congress to hand over military action — at least on a “temporary” basis. Although the law makes it clear that it is supposed to be about controlling the President from using the military indiscriminately, in reality that is exactly what has happened because it has given the President a 60-day window to do as he pleases due to a loose definition of what is an “emergency”. At the same time, once involved, Congress has rarely pushed back and forced a President to return the military when this window was closed (and on a few occasions, Presidents have ignored Congress and paid no consequences for it). The Supreme Court has somehow managed to stay mostly uninvolved save for removing the “Legislative Veto” power in the law in an unrelated case, but that portion has never been tested. As such, the War Powers Act is the law of the land. While it is impossible to say what the Supreme Court would decide in a full trial, what is clear is that there is massive ambiguity in the Constitution itself that makes this particular law only “possibly” un-Constitutional instead of definitively.

As an alternative, we must return to Amending the Constitution to further build the wall between the Legislative Branch and the Executive Branch and clarify the points that are up for interpretation.

By Amendment to the Constitution of the United States, Article 8, Section 3, Clause 1 shall be added.

No Branch of the Federal Government may delegate any duties, responsibilities, or powers as laid out by the Constitution to any other Branch.

First is a new section of our brand-new Article 8. Section 1 was on limitations of those serving in government and Section 2 was on voting rights. In Section 3 is a focus on further cementing the boundaries between each branch of government to make sure each is doing its appropriate job. This starts with this specific Amendment of “non-delegation”. It would seem obvious that the Legislature makes laws, the Executors implement laws, and the Judiciary interprets law, but that is not what has happened in practice. Thus, we must establish those boundaries anew.

To begin with, Congress has granted significant powers to the Executive Branch. For instance, the Environmental Protection Agency or the Food and Drug Administration can set standards that are to be followed, penalties for non-compliance, and act as the quasi-judiciary arm during appeals. Congress has actually passed very few laws in the 21st Century, but the Executive Agencies have passed hundreds of rule changes that act as laws because of this delegation. Executive Agencies are supposed to act out the will of Congress and be the enforcement arm, not the legislative one. As such, their power needs to be reined in and Congress needs to be forced to do its duty.

By Amendment to the Constitution of the United States, Article 8, Section 3, Clause 2 shall be added.

The Executive Branch and Judicial Branch may not create any new law or rules on top of existing law. Each may suggest and present wording for such laws to Congress, but only Congress shall have the ability to make changes to existing law and create new law.

As an extension to the earlier Amendments that stopped the courts from creating law and forced the issue into Congress (though with an enforcement mechanism of contempt and treason via the Vice President to wield), this Amendment extends the same ideals to the Executive Branch. What this effectively means, as an example, is that the EPA could not just capriciously change emissions standards as Presidents come and go. If one President wanted tougher standards and one wanted weaker ones, today it is a matter of the President getting their person in charge of the agency with a bare majority of the Senate or writing an executive order to the agency to do the same. Instead, the EPA would now suggest the change to Congress, present the evidence for it, and then Congress would vote (and that vote would be recorded for posterity).

One of the key reasons Congress has delegated so much of its power is that it does not have the technical knowhow of the many facets the government is involved in. No one person can be an expert on all scientific, financial, organizational, operational, military, cultural, and every other concern, and they should not be expected to be. The job of civil servants is to support the government in execution and in decision making, so on a case-by-case basis these agencies would be able to present their specific issue. The only “delegation” that would be happening is the due diligence necessary to present a case. And again, this would keep Congress in its lane of creating all laws and the rest of federal government in the role of executing, implementing, understanding, and interpreting those laws.

In the same vein, the Executive and Legislative Branches need to stay out of the way of being the juries for implementation of the law.

By Amendment to the Constitution of the United States, Article 8, Section 3, Clause 3 shall be added.

The Executive Branch and Legislative Branch may not create or run any judiciary function except where designated by the Constitution. Any judicial function must be vested within the Judicial Branch in the Supreme Court or an inferior Court as ordained and established by Congress.

There are many examples of this where the Executive Branch acts as a judicial unit. Thinking of the same agencies referenced before, if the EPA gives a company a civil fine (executing the law), the company can then go before EPA Administrative Law Judge. This judge is really an employee of the EPA and therefore part of the Executive Branch, no matter how much independence and lack of oversight the judge is given. The Constitution is very clear: Congress is supposed to set up “inferior” courts to the Supreme Court that are part of the Judicial Branch only. Yet the Executive Branch also has the Executive Office for Immigration Review and the Federal Mine Safety and Health Review Commission, both of which act as appeals courts within the Executive Branch. The Executive Branch cannot act impartially in a case because they have already interpreted and executed the law as they believe it is written. Only an independent court can say if that interpretation is correct with the will of Congress and in line with limitations of the Constitution.

An engraving on the wall of the Supreme Court (as shown in January 2020) quotes the decision in a pivotal case that established the Supreme Court’s right to review State laws and judicial decisions for their Constitutionality. Like many parts of government, the Constitution does not explicitly give this right. As such, clarifications are often needed to make sure each branch of government is doing its expected duty.

By the way, there are certain exceptions, as noted by this Amendment. Specifically, only the Senate can try all Impeachments (Impeachment being the accusation created by the House of Representatives, conviction or not is done by the Senate). Aside from this case, there is no point where Congress, the President, or their designees should be acting as judge and jury.

That is not to say that the Judicial Branch and the Legislative Branch do not step into the Executive Branch’s role, and this must be stopped as well.

By Amendment to the Constitution of the United States, Article 8, Section 3, Clause 4 shall be added.

The Judicial Branch and Legislative Branch may not create or run any agency, department, or any other division of the Federal Government underneath each Branch save those granted by the Constitution.

While it was not a major component of the above re-organization of the government, there are several agencies that exist in the Legislative and Judicial Branches. While the reorganization and the prior Amendments attempt to force organization underneath an executive structure lay the groundwork for this idea, the specific Amendment here makes sure that neither Branch is running an Agency. The only exceptions are as stated by the Constitution, namely the Supreme Court is in charge of all other courts and can create its structure there and Congress can have aids to manage the legislative process (though we severely restricted that earlier, as well).

Which now brings up back to how we got here: war. The Constitution says that only Congress can allocate funding for the military and determine if there is war, and that the President is Commander in Chief of the armed forces (in so many words). However, both are vague enough that there have been massive expansions of what each means and how the President can act without Congress. Sometimes, Congress has given great powers to the President both intentionally and unintentionally. Whatever the case, it needs to be reined in and fully clarified to explain the differences in responsibilities.

By Amendment to the Constitution of the United States, Article 8, Section 3, Clause 5 shall be added.

While acting as Commander in Chief of the Armed Forces of the United States, the President may not deploy any part of the military without the expressed consent of Congress. Should the President declare an emergency session, Congress must respond to a President’s request for military services within forty-eight hours. Congress must renew any use of military services every ninety days or within the limits set by Congress at no more than ninety days. The President may only deploy military services without the expressed consent of Congress in Cases of Rebellion or Invasion as a defensive measure only, and then only until Congress is able to convene and officially declare intent.

There is a lot to unpack here, so let us go through it. First off, there is a vast array of changes to how the Constitution deals with the military in general. Most of the Constitution is talking about the Army, the Navy, and raised militias. At the time of the Constitution, there was not much of a standing army to speak of, nor were there necessarily intentions to have one. However, over time, that is exactly what has happened, as well an expansion through technology of what the military is capable of. Additionally, the military does a lot more than engage in battle. For instance, the military is involved in rescue, training, support of allies, building, and other non-destructive activities. As such, it is important here to pull back and broaden any activities that are done by the Armed Services, no matter what they are now or in the future. This is especially important as to extend beyond “war” and into anything the military can do so that it is definitive that Congress is the ultimate regulator of the military no matter the lexicon used.

Next, it would now be explicit that Congress must approve of any deployment of the military. The choice of deployment is deliberate as it implies sending troops to do an action no matter where that may be. This could be setting up a base in a peaceful ally, invading another country, going to the border of the United States, assisting with building a dam within the United States… really, anything that they do. That said, it is not to the level of detail of “how” the military is to do it. The President would not need to go to Congress with battle plans to get approval; he is still the Commander in Chief. That is the point of what the Constitution was originally saying: Congress tells the military to go somewhere to do something, the President commands the military in how and when to do that something once there.

Now, there may be times when the President believes it is necessary to engage the military for whatever reason. The War Powers Resolution unfortunately gives him the ability to do that for 48 hours, though the intention was to stop the President from using the military without Congressional approval. This Amendment reverses roles and makes it so the President must go to Congress for approval. One of the reasons Presidents have sidestepped Congress in the past has been because of Congresspeople’s intransigence and slowness to act, so this again forces Congress to make a definitive decision quickly (in the same 48 hours). Despite that, Congress can still say “no” and the President will not be able to deploy the military.

And if he does such a thing? That is what the clauses for impeachment are for! The Constitution already has a mechanism for Congress to rein in the President. There is also the 25th Amendment, Clause 4 which could theoretically have the Vice President and the majority of the Secretaries declare the President unfit and remove him from office (though this is more likely to happen on television dramas than in real life). In either case, as with any reining in of overuse of the power of the Executive Branch, the mechanisms are already in place. They are not used because Congress is too politically aligned with or against the President one way or another, so the tools are useless unless the changes to Congress in the first section are implemented.

Finally, there is the exception when the President can deploy the military without Congressional approval — and that is in either a rebellion or an invasion, which is in line with the same wording of Article 1, Section 9, Clause 2 (suspension of the Writ of Habeas Corpus, or holding someone without their due process rights). But that does not mean the President can keep the military involved without Congressional approval; it is just until Congress can convene. In the case of an invasion, that may take some time, so it is important to be able to act without worrying about getting Congress together for a vote. However, if the “invasion” is not an imminent threat to life and property, then Congress should be able to meet and make its will known. A President could not just declare a wayward single boat from Cuba an “invasion” and launch an offensive war; this is why it is specifically supposed to be only in “defense”, as in the United States is being actively attacked and time is of the essence. And if the President and military were able to repel an invading force or put down a rebellion, then the action would be over — the military could not chase invaders back to their home country without Congressional approval.

In the end, as soon as Congress got back together, it could decide if it wanted to expand the scope and allow an offensive war or decide if enough was enough. Whether this case or a more “standard” declaration of military use, Congress would have a built-in clock on itself. Every 90 days (or less if Congress limited the action) Congress would have to re-approve the deployment of the military. If they did not like what the President was doing, they could rescind the deployment. If a new Congress came to power and did not like the direction and use of military, they could vote against it. Either way, it would force Congress to continually re-evaluate the use of military force and be responsible over-and-over again for current events. In that way, they could not just say it is the President’s responsibility and wash their hands of it.

A quote from Martin Luther King Jr. at his memorial in Washington, D.C. as pictured in December 2019. Here we have a reminder that we are not just fighting to end an issue, but that we should be intending to create justice for all involved. This means having a plan, reason, expectation, and understanding of what we are doing.

With all that has been put on the President’s plate both from the Constitution and the changes we have made above, there would not be a lot of time in the day. As such, the President may need some additional assistance with his duties. For instance, he may want someone else to represent the United States in an international arena or to greet with foreign dignitaries. But why should that just be someone who happens to work for the federal government? Why not another member of the executive government? As a further addition to the new Section 5 under the existing Article 2:

By Amendment to the Constitution of the United States, Article 2, Section 5, Clause 6 shall be added.

The President may temporarily delegate specific Executive Duties to a Governor from a State or Territory such that the Governor may act as the President in that regard.

The Governors of the States and Territories are closer to the function of the President and as such would be the most likely to act best in his regard. This would create a stronger relationship between the leaders of the Federal and State/Territory governments while still sticking to the same branch of government. It would also show a sign of seriousness to partners around the world by sending such high-level executive personnel instead of career dignitaries. Being leaders of States and Territories, they would also have an appreciation of what their area needs are and the pressures that go along with running a government that any agreement might impact. And thus, it would be a closed loop within executive authority and solidify those powers as laid out by the Constitution with the appropriate walls between the other branches.

At the same time, it would put to work existing agents of the government instead of creating yet more full-time positions. There are already a great number of people in the government just from being elected — why not have them take on a few more responsibilities and save the people of the United States some additional burden?

TO BE CONTINUED…

NEW & IMPROVED:

THE UNITED STATES OF AMERICA

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Over 15 years as a consultant, solutions architect, and trusted partner for some of the largest organizations in the world. Learn more at https://www.jpprag.com

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