The hidden powers of the Presidency

Source: BelConLawBlog.

The President of the United States has the potential powers of a dictator. Maybe “potential” is the wrong word. Here is the beginning of an article in the current issue of Harper’s magazine.

A few hours before the inauguration ceremony, the prospective president receives an elaborate and highly classified briefing on the means and procedures for blowing up the world with a nuclear attack, a rite of passage that a former official described as “a sobering moment.” Secret though it may be, we are at least aware that this introduction to apocalypse takes place.

At some point in the first term, however, experts surmise that an even more secret briefing occurs, one that has never been publicly acknowledged. In it, the new president learns how to blow up the Constitution. The session introduces “presidential emergency action documents,” or PEADs, orders that authorize a broad range of mortal assaults on our civil liberties. In the words of a rare declassified official description, the documents outline how to “implement extraordinary presidential authority in response to extraordinary situations”—by imposing martial law, suspending habeas corpus, seizing control of the internet, imposing censorship, and incarcerating so-called subversives, among other repressive measures.

“We know about the nuclear briefcase that carries the launch codes,” Joel McCleary, a White House official in the Carter Administration, told me. “But over at the Office of Legal Counsel at the Justice Department there’s a list of all the so-called enemies of the state who would be rounded up in an emergency.  I’ve heard it called the ‘enemies briefcase.’ ”

These chilling directives have been silently proliferating since the dawn of the Cold War as an integral part of the hugely elaborate and expensive Continuity of Government (COG) program, a mechanism to preserve state authority (complete with well-provisioned underground bunkers for leaders) in the event of a nuclear holocaust.

Compiled without any authorization from Congress, the emergency provisions long escaped public discussion—that is, until Donald Trump started to brag about them.  “I have the right to do a lot of things that people don’t even know about,” he boasted in March, ominously echoing his interpretation of Article II of the Constitution, which, he has claimed, gives him “the right to do whatever I want as president.”

Source: Andrew Cockburn | Harper’s Magazine

These powers come from two sources. One consists of laws, going back to World War One, granting the President emergency powers and never rescinded. The other is the old doctrine that “in time of war, the laws of silent,” combined with the idea that the USA is a permanent state of war with no foreseeable end.

Presidential powers and Constitutional limits

Hat tip for the chart to David Damico.

President Obama is accused by Republicans of exceeding his Constitutional authority by issuing an executive order to allow up to 5 million unauthorized immigrants who meet certain conditions to stay in this country.

An executive order is simply a directive by a President to federal departments or the armed forces to follow a policy.

With the increase in the size and scope of the federal government, executive orders become more and more necessary to make the government work.  But so does the need for checks and balances to prevent abuse of executive power.

The Constitutional authority to issue executive orders comes from provisions vesting the “executive power” of the U.S. government in the President, making the President commander-in-chief of the armed forces and ordering the President to make sure that the laws be faithfully executed.

The most far-reaching executive order in American history was the Emancipation Proclamation.   President Lincoln claimed power as commander-in-chief to order the confiscation of property of the enemy.

President Franklin D. Roosevelt issued more executive orders than any other President.  On the day he was inaugurated, he ordered the temporary closing of American banks.  Another executive order was to forbid American citizens to hoard gold coins or bullion.  FDR’s most infamous executive order was the internment of Japanese-American citizens during World War Two.