On Enforcing Laws and American Presidents

Commentary Comments (2)

“To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? -Abraham Lincoln

The American democratic system is an amazing one.  It has been tried other places around the world to varying degrees of power and success; but what is amazing is the american respect for the law.  Sometimes striving for the goal is often times better than the goal itself and in american that is the very case with its many and varying mishmash of laws, but what if the highest law enforcer in the Land decided not to respect the law?  Is that even a decision?

 

Perfectly enshrined in our system are the words. “All men are created equal.” and with it, is a sense that the law should (even if it doesn’t ) should apply to everyone and does so equally.  The one person who is just as equal which is different in many places, and why this fails often, is the American President. 

 

The American President is a powerful man, who has many abilities and powers at this control, but one of them is rather Interesting.  He is charged with enforcing the law and all the powers of his office are encapsulated in one man. 

 

US Constitution Article II, section 1The executive Power shall be vested in a President of the United States of America.

 

No matter how big the Executive branch gets, the power of the Executive is still a single being.  Congress can create dozens of laws, and their rules and regulations can be debated forever, but that one line right there states that in almost all cases, The President, IS, the one and only law power of an entire government body.

 

The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President’s acts. 619 Williams v. United States–Find Law Annotations on Article II

 

Meaning, congress can dictate an Undersecretary has the power to do X, but at any time, the President can take over that duty unto himself.   He is the  Executive branch if he deems.  There are many rulings on this “Bright Line” theory, including Myers vs Morrison which eventually led to Congress being able to modify some presidential powers, if congress clearly states why and why for.  Not the issue here.  The president still has the power is he deems.Naturally no president or executive takes on all the powers themselves.  It’s too big, but the constitution definitely makes sure the President is in-charge of his own branch.  

 

There is also a little known power, exorcised often, sometimes in secret, sometimes not.  The Executive has the power to _not_ execute laws.  

 

Article II, Section 3…he shall take care that the laws be faithfully executed, 

 

So it didn’t in the times of segregation, when the US Supreme court ordered an end to segregation in Brown vs Board of Ed,  and  in 1865 President Andrew Johnson’s response was to all effectiveness “make me” .  He refused to follow many enacted laws, that was just some of the famous ones. 

 

In todays world, it is the Media who makes sure the Executive does not become a dictator; the media and our belief that even unfair rules get followed, because we trust someone to catch a clue and make the rules then fair. 

 

The Executive can chose not to actually not enforce a big law, but then the media, congress and the daily news cycle would portray the President as being dictatorial, or incompetent or even divisive without reason.   

 

That would not stand in America.  A President that refuses to enforce laws, (again, the big ones we care about) would be eviscerated and quickly reduced to power.  He wouldn’t get followed  ( A rash of resignations) leaving the work of the Executive up him alone.  Quickly becoming ineffective, the country, congress and pretty much everyone else (using their override of veto rules) would just work around him, or if he became dangerous, impeach him from office. 

 

In todays world, very few Presidents can attain the kind of power it would take to flatly refuse to enforce laws of the electorate, but still they try; And they will keep trying.  And that’s why America is great and we are a great democracy.  We still believe it works.  The System we use won’t work everywhere, but it’s working here. 

 

For two views, check out 

 

See: 

Signing Statements and the President’s Authority to Refuse to Enforce the Law.  Neil Kinkopf, June 2006, acslaw.org

 

PRESIDENTIAL DEFIANCE OF “UNCONSTITUTIONAL” LAWS by Christopher N. May. Westport, Connecticutt: Greenwood Press., 1998.

 

OceansOfThought @ January 25, 2008