Historical Source A
A Current Example – Overview and two opposing viewpoints
Overview
Is President Obama Abusing Executive Power?
The House last week adopted a bill that, as the Associated Press put it, "would expedite
congressional lawsuits against the chief executive for failure to enforce federal laws." The measure
was approved by a vote of 233 to 181, with every voting Republican, as well as five Democrats,
voting in favor.
The bill was spurred by what Republicans see as an abuse of executive power by the Obama
administration. They cite executive changes to the Affordable Care Act, known as Obamacare, as
well as executive orders regarding immigration and the environment. Republicans are also
displeased with the administration for failing to fully enforce federal laws on sentencing and the
federal ban on gay marriage.
“The Constitution gives Congress the responsibility to write the laws and the executive to enforce
them," said Rep. Trey Gowdy, R-S.C., the bill's sponsor. "We don’t pass suggestions. We don’t pass
ideas. We pass laws." House Majority Leader Eric Cantor, R-Va., added: "The president's dangerous
search for expanded powers appears to be endless."
President Obama, in his most recent State of the Union address, explicitly said that he would
respond to Congressional obstruction by finding measures that could be implemented in the
absence of congressional action. "America does not stand still – and neither will I. So wherever and
whenever I can take steps without legislation to expand opportunity for more American
families, that’s what I’m going to do," Obama said. Congressional Democrats have defended the
president's approach, saying that Republicans want a "do-nothing president," in addition to a "donothing Congress." Sen. Majority Leader Harry Reid, D-Nev., said that the House bill is "dead on
arrival" in the Democratically controlled Senate.
Scholars, meanwhile, have split on whether the president is overreaching in terms of executive
authority."Obama’s assertion of unilateral executive authority is just routine stuff. He follows in the
footsteps of his predecessors on a path set out by Congress. And well should he. If you want a
functioning government — one that protects citizens from criminals, terrorists, the climatic effects of
greenhouse gas emissions, poor health, financial manias, and the like — then you want a
government led by the president," wrote University of Chicago Law School Professor Eric Posner.
But Michael McConnell, a former federal judge who is now a professor of law and director of the
Constitutional Law Center at Stanford Law School disagrees, writing, "While the president does have
substantial discretion about how to enforce a law, he has no discretion about whether to do so. ... Of
all the stretches of executive power Americans have seen in the past few years, the president's
unilateral suspension of statutes may have the most disturbing long-term effects."
First Viewpoint: Limited Executive Power
Obama's Power Grabs Set a Dangerous
Precedent
By Roger Wicker March 21, 2014 | 3:00 p.m. EDT
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President Obama’s habit of repeatedly sidestepping Congress has made a mockery of the
Constitution. Not only has he defied the law to advance an ultra-liberal agenda, but his power grabs
also set a dangerous precedent for future administrations.
America’s founding document is clear in its designation of powers to Congress and the President.
“All legislative powers” go to the legislative branch, while the responsibility of seeing “that the Laws
be faithfully executed” belongs to the executive. These decrees are essential to the separation of
powers enshrined in the Constitution.
Our Founding Fathers knew the danger of an imperial presidency and established a system of
divided and limited power to protect against it. Sadly, President Obama continues to undermine this
important balance through a flagrant use of administrative fiats.
Perhaps nowhere is the president’s overreach more evident than his unaffordable, unworkable and
unpopular health-care law. Instead of working with Congress to fix the law’s many flaws, Obama has
consistently proceeded to rewrite legislation while at the same defending it as “the law of the land.”
For example, he has delayed the law’s key provision requiring employers with at least 50 full-time
employees to offer health insurance. Similarly egregious is his political postponement of the law’s
core individual mandate provision.
The administration’s constitutional runaround is particularly inexcusable given the bipartisan
willingness in Congress to address the health care law’s shortcomings. But in response to
congressional efforts to delay or modify the law, the president issues veto threats and then follows
them with his own unilateral edicts.
Alarmingly, the Obama Administration’s abuse of power extends far beyond the health-care law. He
has also made illegal “recess” appointments without the “advice and consent” of the Senate. These
excessive orders and waivers are not isolated incidents but part of a troubling pattern. Time and
again, President Obama has defied the limits of his office by ignoring the Constitution when it is
convenient.
The president needs to be held accountable for actions that violate his executive power. In an effort
to defend the Constitution’s separation of powers, Congress has offered a potential response to curb
this abuse with the Enforce the Law Act. This legislation would allow Congress to adopt a resolution
authorizing a lawsuit against the executive branch if the president refrains from enforcing any
provision of federal law. Essentially, it would help ensure that the President is fulfilling his
constitutional obligation to see that the law is faithfully executed.
A functioning democracy requires all three branches of the government to recognize and respect the
parameters of power that the Framers envisioned. Likewise, preserving the integrity of the
Constitution requires dutiful vigilance by those who have sworn an oath to protect it. The Enforce the
Law Act is one solution, but what the American people really need is a president who understands
the Constitution and the essential limits on presidential power. As James Madison wrote in essay
No. 48 of "The Federalist Papers," “It will not be denied, that power is of an encroaching nature, and
that it ought to be effectually restrained from passing the limits assigned to it.”
About Roger Wicker is the junior Republican senator from Mississippi.
Second Viewpoint: Strong Executive Power
The Framers Wanted a Strong President
By Brianne Gorod March 21, 2014 | 3:00 p.m. EDT
Alexander Hamilton wrote, “all men of sense will agree in the necessity of an energetic Executive.”
That statement tells us what Hamilton would have thought of House Republicans, who last week
passed the Enforce the Law Act, legislation directed at President Obama for, in the words of the
House Report on the bill, “stretch[ing] his powers beyond their constitutional limits.”
House Republicans are wrong on two counts. First, President Obama has hardly been failing to
“[e]nforce the [l]aw." For example, in the immigration context, the administration has been deporting
people at record levels, prompting some Latino leaders to call Obama the “deporter-inchief.” Second, Obama does not need to “stretch[] his powers beyond their constitutional limits” to
make good on his State of the Union promise to make 2014 a “year of action.” After all, our Founding
Fathers wanted a strong leader for the nation.
Indeed, although House Republicans claim the Framers had a “deep-seated fear of the abuse of
executive power,” what they also feared was a president who was so weak that he could not enforce
the nation’s laws.
Before there was the Constitution, there was the Articles of Confederation. The Articles of
Confederation lasted less than a decade, in large part because the government it established lacked
an executive branch. When the Framers convened in Philadelphia to draft a new national charter,
they sought to remedy this deficiency by creating a strong executive branch headed by a single
person. The new Constitution gave the president a number of powers and duties, among them the
obligation to “take Care that the Laws be faithfully executed.” Because the Framers understood that
the execution of the law — unlike its enactment — would be an ongoing process, they required the
president to always be in service, unlike the Congress which needed to meet only once every year.
One respect in which the president “faithfully execute[s]” the laws is by deciding what the laws mean
and how they can best be enforced. When Congress enacts a law, there will often be ambiguities
and gaps, and courts will generally defer to the executive branch’s understanding of how to resolve
those ambiguities and fill those gaps. Moreover, because it would be impossible for every violation of
the law to be prosecuted, the executive branch must exercise judgment in determining how to
“faithfully execute” the law. As then-Justice William Rehnquist wrote for the Supreme Court nearly
thirty years ago, an “agency’s decision not to prosecute or enforce [a law] . . . is a decision generally
committed to an agency’s absolute discretion.” Of course, there are limits to that discretion, but
House Republicans are wrong to suggest that the president is engaging in “executive overreach” by
deciding, for example, how best to enforce the nation’s drug and immigration laws.
The Framers might not have been able to foresee the precise problems that confront the country
today. But they foresaw that the president might sometimes need to take unilateral action to
address them. House Republicans act as if every use of Obama’s executive power is an abuse of
that power. It is not. We can only hope that sense will once again prevail in Washington, and
House Republicans will not be allowed to deprive the country of the “energetic Executive” the
Framers wanted.
About Brianne Gorod is appellate counsel at the Constitutional Accountability Center.
Reference
http://www.usnews.com/debate-club/is-president-obama-abusing-executive-power
POLITICAL CARTOON, “THE KING CAN DO NO WRONG”
Document Note: The 1st image references FDR “cancelling” the Constitution is likely referring to his attempt to
pack the Supreme Court. The 2nd image depicts President Andrew Jackson who was credited with starting the
spoils system. Think about what this cartoon is saying about his presidential power and what are the details in the
cartoon that contribute to your interpretation. The 3rd image shows a weaker Congress being controlled by the
very powerful President Richard Nixon.
SUPPORTING QUESTION 4
SOURCE C
EISENHOWER AS A LAME DUCK / LAME DUCK CARTOON
Document Note: The term “lame duck” is used to describe a politician that is nearing the end of their
term of office and is either not eligible for or not seeking re-election. Some believe that politicians in this
situation have little power or influence over policy during this period.
“Pessimists had predicted that Eisenhower would be a seriously crippled “lame duck” during his second
term, owing to the barrier against reelection erected by the Twenty-second Amendment, ratified in
1951. In truth, he displayed more vigor, more political know how, and more aggressive leadership during
his last two years as president than ever before. For an unprecedented six years, from 1955- 1961,
Congress remained in Democratic hands, yet Eisenhower exerted unusual control over the legislative
branch. He wielded the veto 169 times, and only twice was his nay overridden by the required two-third
vote.”
Source: The American Pageant, Thirteenth Edition, pg 904.
Source: Artist, Mike Luckovich
The Case for a Strong President
The growth of the president's power is necessary. presidents should be strong and powerful.
The U.S. today needs a strong president. Who else can give the nation leadership? Who else can make the quick
decisions that are needed in a national emergency?
In the old days, an army could move only as fast as its horses and sailing ships. There was plenty of time for
Congress to debate issues of war and peace. But not today. Only the president can act fast enough in an emergency.
Furthermore, only the president can give real leadership on the many national problems. Congress cannot lead as
well as the president simply because there is only one president, but there are 435 Representatives and 100
Senators. Members of Congress seldom agree on what to do.
Unlike members of Congress, the president is elected by all the voters. The president does not represent just one
part but the whole of the country. And if the people think that the president has taken too much power, they can
always elect someone else every four years.
So run the arguments of those who believe in the need for a strong president.
The Case Against a Strong President
We often treat our presidents as if they were royalty. presidents live in a big mansion. They have servants and
assistants whose only job is to make sure the president has everything he or she wants.
They don't get much personal contact with the American people because the Secret Service fears they may be
attacked. As one critic says: "No one speaks to him unless spoken to first. No one ever tells him to go soak his head
when his demands become unreasonable."
The president has taken more and more power at the expense of Congress. The people who wrote the Constitution
believed in checking and balancing power between Congress and the president. But today, the president is more
powerful than Congress.
One example of what has happened is in the power to declare war. The Constitution clearly gives that power to
Congress only. Yet recent presidents have been able to fight wars without a formal declaration of war by Congress.
Take, for example, Vietnam. Though the president never asked Congress for a declaration of war against anyone in
Southeast Asia, Congress allowed the president to conduct a war there.
Congress passed a resolution allowing the president "to take all necessary measures to ... prevent aggression [in
Vietnam]." Then, over the course of the years, it consistently gave the president the money that he said he needed to
do so. It may be said that by doing this Congress willingly gave up its exclusive power to declare war.
So run the arguments of those who are against the idea of a strong president.
Adapted from The Presidency, Congress, and the Supreme Court, Scholastic Inc., 1989
Thomas Jefferson and the Louisiana Purchase
“the less we say about the constitutional difficulties respecting Louisiana, the better, and what is
necessary for surmounting them must be done sub silentio.”
Source- Thomas Jefferson in a letter to James Madison
Abraham Lincoln and Habeas Corpus
The doctrine of habeas corpus is the right of any person under arrest to appear in person before the
court, to ensure that they have not been falsely accused. The US Constitution specifically protects this
right in Article I, Section 9: “The privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require it.” Lincoln initially suspended
habeas corpus in the volatile border state of Maryland in 1861 in order to try large numbers of civilian
rioters in military courts and to prevent the movement of Confederate troops on Washington. The order
was eventually extended in response to different threats. In the summer of 1862, President Lincoln had
called up the state militias, leading to increased opposition to the Civil War within the Union. By General
Orders No. 141, September 25, 1862, Lincoln subjected protestors to martial law and the suspension of
habeas corpus.
The suspension of habeas corpus was one of Lincoln’s most controversial decisions. In the spring of
1863, General Ambrose Burnside arrested Peace Democrat Clement Vallandigham, who had been
critical of the US government, and banned publication of the Chicago Times, which was supportive of
Vallandigham. Burnside’s actions drew widespread criticism, to which Lincoln responded by reducing
Vallandigham’s sentence and revoking Burnside’s order suppressing the Times. Lincoln defended himself
against charges that his administration had subverted the Constitution, however, arguing that acts that
might be illegal in peace time might be necessary “in cases of rebellion,” when the nation’s survival was
at stake.
Source- A proclamation on the suspension of habeas corpus, 1862
https://www.gilderlehrman.org/history-by-era/american-civil-war/resources/proclamation-suspensionhabeas-corpus-1862