Faithfully Executed

By | |

Your Monday wisdom from Stephen L. Hall as requested by Al’s Grandpa.

***

Certain people have taken to calling for President Trump to either appoint a special counsel to investigate and prosecute Hillary Clinton or to order the Dept. of Justice to prosecute the case. Predictably, the opposition cries out that he can’t do that, the Constitution limits executive authority in this matter. (They would be far more credible had they advocated such Constitutional limits when their own guy was touting the virtually unlimited power of his pen and phone.)

One of the silliest assertion of such opposition it that the President has no authority to order the Dept. of Justice to prosecute because of the Separation of Powers. Which, of course, divides the functions of government into legislative, executive, and judicial. It was easily pointed out that such notions were foolishly contrived as the Department of Justice is an executive agency, as are most government agencies, and thus properly under the direct authority of the President.

However, to the larger question of how far a president’s authority over executive agencies extends is an increasingly important question given the history over the last century of the legislature to vest in those agencies an ever increasing scope of federal authority along with quasi-legislative, and quasi-judicial functions.

The Constitutional clause to which Trump’s supporters point, is the last part of Article II, Section 3, “. . . he (the President) shall take Care that the Laws be faithfully executed . . . .” Just what does that phrase mean, and how does it really affect the powers of the presidency? A great starting point is an article on this very subject can be found at heritage.org.

Certainly, the most obvious interpretation of that phrase is the one Trump supporters would assert, that ordering the Dept. of Justice to do their job and to prosecute is not only within the President’s authority, but is actually the President’s obligation. “Washington observed, ‘it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to’ that duty.”

The counter-interpretation of this passage would be that it is merely the President’s job to oversee those who are responsible for carrying out this duty, but that the actual duty to perform such tasks is then out of his hands. “[O]ne view, the clause merely requires that the President oversee those statutorily charged with executing law, and does not assume that the President may control law execution.”

Such an interpretation cannot withstand scrutiny, as the aforementioned article explains, both in historical context and in the very limited record of Supreme Court interpretations. “Restrictions on removal, and a tradition of independence, often make it impossible for the President to ensure that the independent agencies faithfully execute the law.”

“Since the New Deal, however, the Supreme Court has sanctioned the creation of independent agencies, which operate as a fourth branch of government.” However, as the duty is constitutional in nature, the Supreme Court errs if it would feign to restrict the President from carrying out his Constitutional duty.

To put it bluntly, if the President insisted upon removing from office as a matter of fulfilling his Constitutional duty to “take Care that the Laws be faithfully executed”, no Supreme Court decision could overturn that removal from office without the President’s acquiescing to such a decision.

There is another spurious argument put forth in that article which “construction suggests that the President must obey even those statutes that forbid him from overseeing law execution”, however, such interpretation is instantly dismissed as no statute could override the actual language of the Constitution. If it is the President’s Constitutional duty, Congress is powerless to usurp that authority from him, and any prior President is powerless to accede to such unconstitutional legislation.

Thus, let us look at a situation where the Dept. of Justice flatly refused to prosecute someone, such as Hillary or Lynch or Holder, whom the evidence obviously pointed to a likely criminal act. There would essentially be only four options available to a President: 1) to order the prosecutors to prosecute; 2) to fire the head of the agency for refusing to bring charges, promote an acting head, and continue to fire people until someone prosecuted; 3) appoint an outside or special prosecutor just for that case; or 4) let the matter drop and neglect their Constitutional duty.

Congress, with the approval of the Supreme Court, has stated that the President does not have the authority to simply fire bureaucrats or underlings in executive agencies without cause but only political appointees. Thus negating the long standing common law principle of the employment-at-will doctrine that an employee can be fired for a good reason, for a bad reason, or for no reason whatsoever. Federal employees enjoy better job security and protections than the general public.

Traditionally, the reason for this was to prevent the executive, whether city, county, state, or federal, from firing everyone and hiring all of his supporters who might be more inclined to be persuaded to support, overlook, or even participate in corruption by that executive. They wanted to separate the day to day public employees from the political process.

However, as unforeseen consequences usually do, this created a corruption of a different and more malignant kind as the bureaucracy, precisely because of its independent nature, can operate in collusion to oppose and thwart the will of that politician duly elected because of the limited duration of their office itself.

For those who espouse “term limits” as the cure-all of political corruption, understand that such term limits do not apply to the bureaucrat. It is this type of corruption which allows for the #Resistance movement and the Deep State bureaucratic support opposing and forestalling the current president, which makes it difficult to fix problems such as we are experiencing with the Veterans’ Administration.

Back to our premise, the head of the agency is a political appointment, even an acting agency head. They do serve at the will and pleasure of the President. Thus, they are employees at will and can be fired for any reason. I can see no reason why they could not be fired for refusing to enforce the law when enforcing the law is their actual job.

The question then becomes, could an employee of such a department refuse a promotion to the agency head? I think that it would certainly be within the employee’s purview to refuse a promotion, so the strategy of promoting and then firing just to clean house would not be effective. However, I would think that they could be fired for refusing a direct order from the head of the agency to prosecute a crime.

As for the idea of appointing a “special prosecutor”, I have never been fond of that idea as it would make the entire concept of a Department of Justice a meaningless organization to have around.

One more thing worth considering on this point is what happens when a President fails to faithfully execute the law. What happens when the President takes it upon himself to ignore, suspend, or rewrite laws, even those he signed into law, merely because he has a phone and a pen and thereby thinks he is legislature as well as executive?

The President is the only person in the Constitution, specifically required to make an oath that he “will faithfully execute the Office” to which he was entering. The Founding Fathers considered the diligence and faithfulness of the President that important.

Essentially, a President may only be removed upon a conviction by the Senate upon a trial Impeachment, and may only be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” Violating your oath of office is not an impeachable offense. Ergo, there is no punishment for any President failing to faithfully execute the laws, it is merely a stain upon the honor of a man.

Let us get back to our original discussion. “Finally, the President may not refuse to enforce a constitutional law . . . for that would amount to an extra-constitutional veto or suspension power.” If the Supreme Court has ruled that the President may not refuse to enforce a law, then it would be absurd to think that the agencies and employees who work for him could so refuse.

A bureaucrat cannot have more authority and power than the President for whom he works to simply refuse to enforce the law.

“The executive Power shall be vested in a President of the United States of America.” US Constitution, Art. II, Sect. 1. Thus begins the section of the Constitution regarding the President. Neither Congress nor the Supreme Court has the authority to wrest executive power from the President.

Now in some states, such as WV, and most counties, the prosecutorial authority has been intentionally separated from the power of the governors or the county commissions. There the executive authority is not vested in a single person. For example, in WV, there are six (6) statewide, independently elected executive offices, governor, secretary of state, auditor, treasurer, attorney general, and commissioner of agriculture.

Because these other five officers are directly elected by the people, they do not derive their power from the governor and are not subject to his command and instruction, they are independent executive powers in their own right. However, the Founding Fathers thought it important that the executive branch of the United States be unified, to speak with one unified voice, one single authority.

It would fly in the face of the very structure of the Constitution to admit to executive agencies which were contentious or rebellious, to assert their own executive authority. That interpretation would violate the vesting of executive power in the President and the President alone.

Long before the Constitution, our civilization recognized the importance of not only the executive authority to enforce laws, but the necessity that those laws actually be enforced, not merely esoteric or theoretic, some law written in a dusty tome.

“Nulli vendemus, nulli negabimus, aut differimus rectum aut justiciam. To none will we sell, to none will we deny, to none will we delay right or justice.” Magna Carta, Section 40, (1215).

People often forget that the Magna Carta is the law of every English society still to this very day. Many of the provisions of the Constitution, its principles, are to be found in an original form in the Magna Carta. It is the duty of the sovereign, the state, the executive, that right and justice will not be denied or delayed or sold. The agent of that state may not what the executive is forbid.

Bookmark the permalink.