Tuesday, April 12, 2011

Unofficial, but Understood Powers of the President

Suffice Justice Jackson's opinion to say that she is not happy with the ways of Washington.  She feels the president has taken too many powers away from Congress, and Congress is allowing this to happen without putting up a fight and sometimes even approval.  She notes that the constitution is more of an outline of Government and has some ambiguity in it's broad statements, but the current system is a far cry from the constitutionally vested powers.
    As it relates to the case, she notes that such emergency eminent domain powers have dangerous precedents in other countries when left up to one person.  First, she notes that  Germany after WWI gave their leader many powers to curb citizens freedoms in dire situations and this led to the catastrophe of the Third Reich ruling.  The French Republic did not vest the emergency laws in their leader, but they must be gained as a parliamentary measure.  Great Britain also successfully fought both world wars with parliamentary approval of emergency laws being given to the prime minister.  Through these three examples she finds that parliamentary control made emergency powers compatible with freedom.  If one person has all these powers there is greater chance that corruption can lead to disastrous results for the country.
   She notes what Diclerico also found, that Congress has made few attempts to gain this power back from the President.  Because the president is understood to be the leader of the political party that a portion of the members of congress are a part of, there is not as severe of a reprimand on the President for overstepping his bounds as there maybe should be.
   The justice feels that the only time the president should have his maximum powers is when he has been given approval by congress to act.  She also says that if under these situations his action are deemed unconstitutional than the entire system lacks power.  In other words, there should be very few of those situations.  This is the only time the president can say he has "inherent" or "implied" powers.  The justice even acknowledges some wiggle room when the power is not clearly defined by policies.  But, in the case of the steel mill there are set policies the president ignored.
    Justice Jackson wisely says that the purpose of the constitution was not just to define powers, but to keep power from getting out of hand.  In this she sees a clearly defined set of checks and balances.  She has observed a history of presidents pushing the limits of these powers and thereby taking away power from the other branches, even the judiciary which is not barely mentioned in her opinion.  This is very similar to DiClerico finding that presidents look for every possible way to circumvent the law in regards to war powers.  They try to keep the true details of the troops activity confidential for as long as possible because the 60 day clock will start as soon as everyone realizes the president authorized fighting without congressional approval.  DiClerico also shows how presidents don't even acknowledge that the war powers act restrains them from acting unilaterally.  The presidents speak with Congress because they want to advise them and not because it is their obligation.  Clearly, people need to honor and obey the law for it to be an effective law.
  Those who oppose the war power act cite that the president can't use his veto on a congressional vote and that it gives congress the right to implement the laws, a role given to the president.  But, when considering the dangers of not having the act, the acts implementation is the lesser of the evils. 
   While Justice Jackson's conceptualization of a democracy is highly unlikely, because everyone is looking for loopholes and bargaining for more power, she does lay out a good case of a well run democracy.  The most possible step that can be taken to that end would be further isolating the branches, but beyond that it will take a while to restore some of the powers the president has taken away from the other branches.

1 comment:

  1. Overall, I think your journal was well thought out and well written.

    One point, however, the Justice is Robert Jackson, and you referred to him as a female throughout.

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