In an article earlier this week, I lament the ongoing elitist faction assault on the presidency. To write it, I revisited, as I often do, good arguments from America's founding generation. Its leading lights often proved to be deeply thoughtful individuals. This thoughtfulness showed itself in a reliable "reverence for the laws … inculcated by the voice of enlightened reason." (James Madison, Federalist 49) But it was also on display in their appreciation for the inevitable, often decisive influence of passions and prejudices on the course of human events and decision-making, particularly when the same feelings are shared by many.
These somewhat contradictory habits of thought led them to a disciplined way of reasoning. It realistically appraises the voluble forces at work in human affairs. But it does so without shying away from the work of making out, line by line and brick by brick, practical courses of action. But these actions are not just practical in the sense of getting things done. They also aim to channel humanly motivating forces toward results reasonably consistent with our common sense of goodness and right doing.
Put simply, while our thoughtful founders took account of strong motives of action, they also sought to make provisions for government that would focus deliberate human choice on the good reasons for acting. In proclaiming the premises of American government, and erecting the Constitution's provisions upon them, they respected America's passion for liberty. But they also meticulously laid out reasons why any freedoms and ambitions that passion impels have to be delimited, counter-balanced and properly constrained to preserve liberty. The idea of checks and balances is the necessary consequence of this thoughtful statecraft. It informs the division, relationships and mutual responsibilities of the three separate branches of governments in our republic.
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I have written previously about the congressional dereliction of duty evident in House's unwillingness to take responsibility for all aspects of the impeachment process. It is insane to pretend that an officer – formally a subordinate agent of the president's authority – is not subject to his or her commands, and the supervision of his or her administrative agents. Proofs of this are in the headlines every day. Why? Because the implicit threat of dismissal is an intrinsic aspect of the unitary executive established by the Constitution.
On the other hand, the potentially adverse political fallout from such dismissal is, as it were, a sword of Damocles, the very prospect of which may be exploited to poison the environment of presidential decision-making. To be sure, the Constitution equips the president with the wherewithal to deploy executive power energetically, as and when the need arises. But to thwart humanly inevitable schemes for permanent dictatorship, it equips the other branches of government to be obstacles to their success.
Members of the federal judiciary may, in any case they have the authority to decide, issue opinions signaling that violations of constitutional arrangements, including individual rights and freedoms, are taking place. They can at least interpose an objection that may suspend or stop the unconstitutional abuse of individual natural or legal persons. It also warns the people at large that abuses are taking place.
When the people are sufficiently roused to call for action against these abuses, their representatives in Congress have the constitutional power to investigate, impeach, try and remove any officials they deem responsible for them, including the president and other such high officials. Sworn to uphold the Constitution, members of Congress are bound to act whenever investigation warrants the conclusion that the president, or members of his or her executive body, acting on the president's behalf, have misrepresented, manipulated or contrived to excuse "the abuse or violation of some public trust", resulting in "injuries done immediately to the society itself." (Alexander Hamilton, Federalist 65)
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The judicial and legislative branches of the U.S. government are thus charged to call the president to account for actions that appear to violate the people's trust. But the Constitution specifies no prior constraints on the president's power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. In light of this power, neither the opinions of judges and justices nor the provisions of law and the Constitution prevent a president from taking whatever actions he or she deems necessary to fulfill his oath to "preserve, protect and defend the Constitution of the United States."
The logic with which, in Federalist 26, Alexander Hamilton dismissed "the idea of restraining the legislative authority, in the means of providing for the national defense" also applies to the executive's responsibility in this regard. He derided such prior constraint as "one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened":
We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. …
The existential imperative that forbids restricting the legislative body's power to provide means for the nation's defense must apply with even greater force to the executive, whom the Constitution charges with the power, command authority and ultimate responsibility to use those means as and when exigent circumstances require. Though rarely given thought, this is the most serious justification for the constitutional provision that recognizes the executive power "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
This is not to say that the president is above the law. But, as Hamilton observes in Federalist 26, "the idea of governing at all times by the simple force of law [italics mine] … has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction." In other words, anyone with experience knows its limitations. In exigent circumstances, which threaten the demise of the nation and its Constitution withal, the president must feel free to order the nation's forces to act in any way necessary to fulfill the presidential oath to preserve, protect and defend it. And those sworn to obey the commander in chief must know the president can spare them from punishment for doing so.
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Of course, this means that the individual elected to the presidency takes full and personal responsibility for the legal consequences of the deployment of power thus ordered and authorized. If and when, by sufficient majorities in Congress, the representatives of the people of the United States, and the States, respectively, reject the president's appeal to existential necessity, he or she will be impeached and removed, by a process no executive power to reprieve or pardon allows them to evade. In effect, in any case where the president's use or abuse of the executive power is at issue, the Constitution passes that power of accusation and final judgment of presidential guilt or innocence (which includes the power to pardon any unlawful actions exigent circumstances reasonably and conscientiously require) to Congress.
As a people we need to think this through. We are abandoning the voice and rule of reason, ultimately respected for the sake of the Almighty and invisible God, who supplies its power. But as reason practically falls silent (like the laws in wartime?) effective executive (and therefore enforceable government) power either runs rampant, or else disappears. The result? Not liberty, but chaos.