by Mary W Maxwell
My December 16, 2008 article at GumshoeNews was written in haste to pooh-pooh the suggestion that Senator Graham’s questions at Brett Kavanagh’s confirmation hearing were a hint about Trump ordering civilians to be tried at a military commission. I am now baffled but will lay out what I know of legal presidential power.
Would We Have a President or a King?
There they sat, in Philadelphia in 1787, deciding what kind of presider-over-the-nation person we should have. And who were “they” to make that decision? They were, in some sense, the states.
The 55 delegates from the 13 recently transmogrified colonies voted on each phrase of the draft Constitution. Thus it’s logical that they wouldn’t want the federal government to do too much ruling over the activities in each state. So they limited Congress’s role to specific tasks, in Article I.
Then they had to write Article II, laying out the role of the executive. Madison kept a record of each state’s voting throughout the convention. The states voted as follows for Article II, pretty much as it now stands:
“New York, New Jersey, Pennsylvania, Delaware, Virginia, aye-5; Connecticut, North Carolina, South Carolina, Georgia, no-4; Massachusetts, divided.”
MADISON’S NOTES FROM THE CONSTITUTIONAL CONVENTION, June 1, 1787.
The possibility of kingship was open, as was everything else – rule by a trio, rule by a humble secretary, etc. Here are some of the remarks made that day:
Mr. SHERMAN said he considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the depositary of the supreme will of the Society.
Mr. GERRY favored the policy of annexing a Council to the Executive in order to give weight & inspire confidence.
Mr. RANDOLPH strenuously opposed a unity in the Executive magistracy. He regarded it as the foetus of monarchy. We had he said no motive to be governed by the British Governmt. as our prototype. He did not mean however to throw censure on that Excellent fabric.
… but the fixt genius of the people of America required a different form of Government. He could not see why the great requisites for the Executive department, vigor, despatch & responsibility could not be found in three men, as well as in one man.
…Mr. PINKNEY moves for seven years.
Mr. SHERMAN was for three years, and agst. the doctrine of rotation as throwing out of office the men best qualifyed to execute its duties.
Mr. MASON was for seven years at least, and for prohibiting a reeligibility as the best expedient both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters; and a temptation on the side of the Executive to intrigue with the Legislature for a re-appointment.
Mr. BEDFORD was strongly opposed to so long a term as seven years. He was for a triennial election, and for an ineligibility after… nine years.
Article II As of Today, December 22, 2018:
I show here the full Article minus parts that have been obsoleted by amendment (as indicated by three slashes ///). I’ll bold certain interesting parts.
United States Constitution, Article II
Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. /// [See Am 12] The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, /// shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States./// [See Am 25]
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.‘‘
Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section. 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section. 4. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
What Is the President Not Allowed To Do?
A quick statement as to what the Executive branch (also known as the Second Branch) can’t do is: It can’t do the things that the other two branches are expressly empowered by the Constitution to do. The third branch, the Judiciary, is empowered to rule on cases brought before it. The first branch, the Legislature, is empowered to do many things including to declare war and to impeach any officer of the United States.
Article II says the president shall take Care that the Laws be faithfully executed. Thus he has to do something about lawbreakers. Not in the states, of course, not your basic shop-lifter, but persons who break federal law. For this he employs an Attorney-General to employ some prosecutors to crack down on federal criminals.
Congress has given him some courts “inferior to the Supreme Court” (quote, unquote Article I) known as the federal district and appellate courts. The prosecutors work there.
What about soldiers and officers in uniform – can Trump prosecute them? Yes, but not just because he is Commander in Chief of the Armed Forces. Rather, because Congress “makes rules for the Government and Regulation of the land and naval Forces” (quote, unquote Article I, sec 8, clause 14). That regulation includes the Uniform Code of Military Justice, which is a whole ’nuther law as distinct from the United States Code.
This UCMJ can be applied only to military persons. The courts in which a military law-breaker is tried is the court-martial. It is my understanding that no president can re-write even the smallest portion of UCMJ law. If he can, where is the Constitution’s grant of that power to him?
The NDAA and the MJA
Every year, the House Ways and Means Committee “reports out” a bill called the NDAA – the National Defense Authorization Act. In my opinion, it should not include anything for our representatives to vote on except budget — i.e., appropriations. Nevertheless, the NDAA is well known as the vehicle for “riders” on any subject.
In the 2017 NDAA there were changes to the UCMJ. (Ignore my disapproval; these are legitimate amendments by Congress.) Stuck inside the NDAA of 2017 is something called the Military Justice Act, of course it has to have an acronym: the MJA.
President Trump wrote an Executive Order, number 13825 on March 18, 2018 . It can be found in the Federal Register, and also at Whitehouse.gov in a more informal way. I shall – God willing –in Part 2 – discuss executive orders, military commissions, and laws of emergency.
And we will revive that item about Trump last year seizing the assets of human rights abusers, per a little-discussed Executive Order.
Contact the author: mary @prosecutionfortreason.com