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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: [JGR/Article on the Presidency -
Notes, Drafts, Background] (3 of 4)
Box: 4
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2
The untral challenge informating the
Frances of the Constitution was & create
a stranger national government without
at the same trin permitting that -
to thenter the liberties so recently
non. Expenie and the Antables of cabalation
had the indepunies of a
destitute
of
any,"
"
meah government yet the Rub Framers'
expensive and the colonid rule of Grage III
had demonstrated th that pased by
stay government. The challenge was A
recorite theme two experimes, and wreate
a gramment story enough to serve the
people, get not study enough X /
renants
berome the must rather them the people.
As madin mate, the difficulty was " conding
the requirite atability and energy in government
with the inviduable thating due to litals all
to the markin form." Mr.
The adution enhand by the Framer
was to before government anthing. Power
was to be shared any mainte intitution-
the unstation, the Emilie, I the Inding -
in add that no single brank could became
namended
so personal - to thank the libration of
the people. In carriding the
other
allocation of authorities in the contitute,
Constitution
is itself,
it is mintal to hey in mid He
in every
programe of this comilied Illoration the
national
sense, and
premit of litaly. This in what Hilt
to every
wrote that
uniful
ment
as
be
A
cath
purpose,
a of rights. bill
of
mystem
Om
liberties
have been preued in lange part because of
the Month 1 nums in the contituation
That Montin for but government the
and rather the the mater of the people,
and has and the prople the preden
to enjoy their rights
This but that No count
a kill of + the the declaration in
1 that - serves a spail district
than Mile who our month of allits,
Math Pres, built, - a sudges Than shirts
not only must govern, but want most
restrite + equally mintest presence the
presention of their office. Amy ind Predent is
a truster of the power of the Nin, +
cannot fobeit the purcess for eperare's
[nad
In presing them powers the Prey in protecting
litally by The bibilli the Free to Rh drive.
From
Robert
Empi,
the
the
other
am
x
mind my city
"engy
for
the
Cor
This central fact - that the constitution
is itself a bill of rights, I that the
allocation of power in the contitution is
premotic of liberty - simposer a special
bligation on those who hold office under
the constitution. Those fficials must not
only drushange their responsbilities
but must also respect the constitution
restraints on their office and, equally important,
preserve the constitution presenting of their
office. Any individual Premident is a trustee
of the powers of the office, and cannot
forfeit those power for expediency or any other
purpose. There may be many interes
when a Preident would prefer to have
another branch make a lesinin or take
action verted in the executive, or when
a Preident would be willing to countenance
an intrucion on his powers to achieve
a particular result. At such twis the
Child Executive must reall that powers were
allocated in the Constitution not singly for
efficials but to precere that liberty. Ph
defending the Constituted preresatives of the office
the Preident in intenting letals by fulfulling the
Francis design.
The France looked primary to the
Prevident to provide the initial element of
"energy" in the government. The problem
with the government of the Antiles cabidation
we that it in diditate eass." they
The drafter of the Conditute returned
that and by mati in the Emention that
"competant
powers"
to lead the Noti Aa Hailth mate:
"a-a" 423
The bradets popular madate quatified this
grant of anthity. His cjust power are devid
from the ment 1 the grend. other the
the Vine Parket with In A me, the
Product is the also this in om government
elected that a process indig all the notes.
Only the can clim to speck for all
the smoke, because, so knet into his
looks
relation touth "in the first miline to an
midite ant of the people of America.
(424)-
due
park,
Card Mariez John The and June
but In Card The Hire
This, desta The office of Predent has "a
due dependence on the people, I a due responsibility. to
Perhaps the most pervace responsibility
of the Prident in to administer the specitive
branch.
by
The Frame of on Constitution were practical
men who recognized, as Hamilton write,
"that the true test of good environment in its
optitude and tendery to produce a good
administration. " a The people look
ultimately to the Priduct to ensure
the efficient reformance of duty by the
millions
federal englogen
of
mathed among the various department
and aperies arran the land. of doubt
that any of the Framers, premient an they
were, could have missined the size and
people of today's federal artablishment
They montholers afforded the Previding the
tools to meet the responsibility play
mated in that office "to produce a
good odministration." "
The by Authority
the backet's requility for administration
of play government in his
associatent The count berry
and
and muled that the Princhete power to
nominate with the
advice I empert of the sente - the officer
generally
of th united states, carried with at a
condlary
power
to
review
there
friends
The
people
thus
look
may
the
built
to
for
the
sould
of
the
office
R
the
your
he
is
for
fole
The by constitutional authority implementing
the Premident's requiribility for administration of
the government is his appointment power. The
President in given the power Contitution provides that
the Preident THE shall nominate,
and by and with the advice and cant of the
Sente shall associat, the officers of the United
States.
The
puth Frames gave the President the
resputibility to "take Care that the have be
faithfully executed," and gave him the
power to appoint the officers that assist him
in Discharging that responibility. R the
landward case of Myers . United states, Chief
Intere Tabt, the former President, wrote that it
was a "reasorable indication" from the Predut's
obligation to execute the laws that " he should
relect there who were to act for him under his
distin in the chemition of the have." The Child
recognize
Instice went on to the primale that
the Prevident's againstment power zarried with it
the corolary power to remove those officers
in whom he could no lager place him kid
comfidence: "as his relection of administrative
officers in eventail to He chemition of laws
by him, as must be his power of reming
those for show he can not contine X be
responsible."
The invidubility of the Presdate
requiribility to execute the laws, was
further enamed by what has come to be
human as the "deompatability clause. " In a
shorp departure from parliciently systems,
the Framer provided that " no Person holding
any Office under the United States, shall be a
member of either Home during his Continuares in
Office. " Anticle I, rection 6. Those bolding
high office in the executive banch - indeed,
the Prendent himalf -
may not similtaneously
serve in the Ligislature. This evenue full
of
the
loyalty to the President, and findy fixes
officers
responsability for the edministration of
government in the Bild Prevident. It
has guaranteed a clean live of demonation
between the Legislation and the Executive,
leaving each to its own requiritility
in the contitutived school.
The challenge confunting the modern Previevey
is to "produce a 2000 administration" as
the Frame intended when He Federal astablishment
has grown and so for
beynd anything they could have imagined.
pt in an awaying fact that there are
in
America
more Federal employees taken than there men people
today
when the Frames drofted the Contitution.
Perhaps President washington could play an active
role in experiencing the details of the first
administration it is now the requiribility
of his number to create the mechanisms
for control and condination of the executive
branch.
[E.O. 12291 INSERT]
GROWTH OF FEDERAL GOVERNMENT]
The Prevident has no more important
responsibility under the constitution than the conduct
of foreign affaire As dohn Manhall noted
on the floor of the Home of Resentatives, "The
Present is the sole organ of the notion in
its external relations, and its sale monentative
with foreign notime. " h the formous Curtin-
Wright decision of 1936, the Supreme count agreed
with Manhall's ammunt: "In this want
extend realm, the Predent have has the somen to
speak on listen as a of the notion."
The Prevident's power in this area
derived from A the revent grant of meantive
power, and the more specific grants of
authority to make trenties, vit
did
1
- a assimit our and receive
them of the native, and
his role - Cammolin in Chief of the and
forces.
The Frames reasined that
of the the demonitic
Examine
banches only the Product summed the
regainte attilutes for the surressful aduct
of foreign relations. Hamilton noted in his
description of the executive that "Deinin, activity,
secrery, I will generally characterize
the processings of are man me ornint
degree than the proceeding of an 20th mander,"
and In day - himll one of our must
resembled only disibamate - ansual that
"the Predit will has ~ to minde"
attached
those qualities,
thirt begal the constility of
a basinlly deliberative body - much an
Aa
Hilt
and
4 Owhn it came to the defance
qualities The
of the Nation, the Framers were ever more
which
mantiguous. Hamilton, who send = at
insurant the
General Washington and side dearing
of four
institution
the was of have that "the evit
paint and
the
of was must publicy dennds there qualities
executive as most the
which distinguil the exemine of some by a ingle
ornet bit in
hand. a The birth of man india the dieti
thom
of the common strength; and the nower of directing
[987]
and employing the comman strength form a musl
and emential part in the definition of the
executive anthony." E4922 In foreign offairs
the Nation must speak with are voice, and
only the Pridet in capable of moviding
that moise.
This is not to my that Cymes has 1
rule in the development of foreign roling.
On the contray, the France - regioned
the amount of & two that of the
Senton to a truty, and of come only
Come possenses the sower to declare war.
Emai beynd there defined - notes
the support of Sun has been individuable
to an effective foreign policy thought our
history. Read a legury of
Victor an has been an enviror of the
Amerin tradition of partician solities
toping at the rester's else...
[10-12]
BIPARTISAN FOREIGN POLICY INSERT, 10-12]
Apout from the Present's exective fenctions,
the Constitution assends him a cigificant
note in the logilative process
The Premident has not menly
the power but the duty To " from time
to time to give to the Cymers examination of the
state 1 the Unin, and resumed to then
Carilintin much Meanures as he shall inke
necessary and exchient." ant. II, restrin 3.
The people have grown to spect
leadership from the Prident not only in
executing the laws but also in questing a
program to Cyrem for canduction The
responsibility news from the annual budget
to d astistantive legulative reform.
state the Issustative all NS legislative Perhaps Cant and challe, He speartly in most not fin the provident referried neto Contitute Green and in of the to X regists An be the
pental brindent to the burdet noto for his bill which
the
my
b
the
a trans this purth of both it to Homes been may
will approve it; penit
in an all my poslet not it in
how will his it Sur
centing
Veto - power - outstant personative of the
Readl, A Pay [442] elected But by all also, the good people Ragis (443]
28 (my outs)
Perhaps the most provident of the Prendat's
legislative powers in his qualified nets
power. This power is qualified in the
sense that a will returned by the Brandent
with his dispond can monthlen be enseted
by a two- thinks note of both Houses. The
Framer ascorded the Prident a nots sown
for
this
purposes.
presentions
of Frist, the Frames recognized the "proxemity of
the legilative department to intinde upon the
rights, and to about the powers, President of the other
departments," and provided the exaction a nets
from so that be could defind the premptions of
his ffire against legislative encoachment. The
second purpose of the noto in as " an
security against the enactment of - surger laws."
as Hailth mate:
a-a 443
The imague perspective the Preduct can his to
been in reviewing Registing was recommined by
from Present Tablet maker Chief hutie Tast:
6-6
[Challe, 1.28]
"Th beilt -
the must promisent of the Creduct'
legitative prove in his to -
power, qualified in the same that a will
towned to Cyres with the Insident's diamond
can
be
smeted
two-
thank
note
of
both
House
H
The Empreme
Court recently resterated the importance
of the nets power in the Framers' design
in the landmark INS - chadha decision
That kinin stuck down the "begislative
nets device, whenly Cargers propoted to
reserved to itself, me Home, or
even a committee the authority to block
agency regulations. The count, in an
opinion by the Chil Intice, ruled that much
legislative netwer were unemstitutional, in sant
because) who they proputed to permit Congress to
ant without pointing its action to
the President for symmol a The
Count muled that this vidated the carefully
devised where of the France.
Many had locked to the Regulative
nets an a possible means of restaining
control by the prople's elected representative
over the bugining Federal beneway. That
option in mo loga available, for, as the count
noted; "c-c," " Chadhe, p.39.
the have have makes
they make check
it
Disidative
to
the
L
granter
&
anthity
the
state
by Cypers that The devide also
that for executive agency
action rests with the eventur,
not
at can now be honed that Cyrem,
which can no Ranger review
particular agency action through the ligulative
nets, will take greater came in 400
delegating authority to againes in the first
place. at is mo laya possible for Cyren to
Relegating
avoid the hand phing choices,
power want to
againer
to why that that
with
only
Design if it digues with with the
vague
guidase
resenting that particular agency ntins can be
we to
its
exercise,
united revened. The chadha decin also
claimfies that the resultive is soldly requirible
for executive agency action, with and
beighters the responsibility of the suntic A
same that much action is consistent with
the statutes anthorizing the action.
The intent of the France in providing the
Prident a qualified into power has been
functual to a large actiont by the development
Corgressional
of the practice in to
Farm of contining various item in a
undabtedly
single approximation till The Framersh entiripated
that Cargers would you separate approvation
bills for limite program on activities, and
the Prevident would be able to
review each program. Until about the
time of the was Batwen the states,
this was the practice of Cress. Sime that
time, however, Comes has simmingly condinal
various items of opposition in 1
omnibus approximations bills. This partie
makes it difficult for the Pridet to
Dricharge the repunsibility rested in his by
the Framen, individual become fe cannot
consider the Litem of appropanti reporately
but must inter not - approve the pastage
as a whole. when be must either block
meaded programs so that unteful me
will not be insted, a remit mostable one
to slip though male the instantine ming of
needed program, the Prident is prevented been
at using his note - the
Frances intended, " Is minease the chance in
fam of the comminity against the paing of bad
laws, through haste, industrine, on deign." "
It is for this reason that me have
prograd restoring the Framer' anjuil Daign
by pairing a constitution amount to 2nt
the Present line- item nets authority. The
constitution of no fewer than 43 states
some
grant hund authority to the gmene, and the
experience at the state level must a limiter
not would and well at the Fehal level.
The powers of the Previdery are limited power,
and the Present his constantial requisibilited
in a system according other powers A the
coordinte branch 1 the begislative and the
Inding. As the Express count has remarked,
there is a "nera-endiy tensin between the
Predut exercing the executive authidy in a would
that preats each day some new challenge with
which be must dul and the Crititate adder which
me all live I which no are Digite subsidies
some cont of rystem of durk and belower." The
President is changed with the faithful executive
of the laws, but Caner events the lane
and thing to legislative anthity directly
affects the Predent's ability to advister the
Fedel Government. Th Preduct assist the officer
the Until states, but Cyron articles the
the
Smoke
office must approve the Produt's namines
to fill those offices. The Predit is requirible
for the cudrent of Amain foreign ading, but
only Cyron can declare - and -
on the sente must appoine truties vegotatid
by the Predent. And white, - Intia Fradebuter
noted, the France "did not make the suding
the overseas of one environment, it for been establethed
at least arine Marky v. Madism art, in an
appropriate care, executive action in subset to
julicil review. The member of all them
brank take an outh to mobald the
Contitution, and it in a twite not
only to the genius of the Framer but
also to the statesmanship of those who
have held Hine mder de constitution that
the system has worked as well an it has.
Thomas Jefferson colled the Premiling "a a
splendid missing. The Frames intended, a
Hamilton wrote, that "the executive should
be in a intention to dare to art his
own givion with vign and Decision." The
Prevident has at his drived the advise
of leaved advisor, and be can cannelt
with the Cyron, but the defficult I
potentially mementow decision be must make
are, Reciber in the find andyris, his
alme. better Then
10 Transay steph Batat Feeld
but stom MD The ultimate
guide must be his own conssience.
Im most tested Priduct, Abraham hindin,
amound a standard for Presidents that
has not been regioned upon:
"f Devise to conduct the affairs -
this Administration that it, at the
end, when X can to by down
the reins of summ, R have last
every other friend on smith, I shall
at least have are buil left, and
that find shall be down inde -
me."
AR we propare to communite the britimed
of the Contitution, let m M have
the memory of the Framen who dubted our
as
well
bluegiot for predum, 100 them,
1
like build, who and did not
permit their dream to Die. But let an
who recognize the working of a menter fore.
The registers of the declaration adquative anted
with "a fin while on the partaction of Divic
Providers," and Madium, reving the wash
of the Contitutal noted that
"It is maint for NE man - aions reflection
not to penere in it a fixe of that Administs
had which has been no beganth and simily
extended to on real in the citil stores -
the
readation."
tatter
what President Chearled said an the
occasion of the centenuil of the contitute
rings even time today
a a
The Declaration of Independence not only
proclaimed our freedom from Gent Britain, it
also set forth the princyles for which the
Fouling Father were willing to please their
liver, fortunes, and secred honor: "that
all men are created equal, that they are
endoused by thin creator with certain unstionable
Rights, that away then are Life, hibity and
the Danita punit of Happiness." " The
battles of the Revolution secured the independence
proclaimed in the Declaration; it remained
for the revolutemaries to ant the ideals
of liberty into suctive. History has recorded
many tragic eximber that bear witness to
President Filmores cantin "that revolutions
do not always astablish freedom. Own's
largely
did, and the main season was Der Hd
because
it was shortly followed by the framing
of the Constitution, what the great American
historiam Genge Baneroft termed " the most
cheering ant in the political history of madrind."
GEORGE 1880
One of our ablest statement and contitutional
lawyers, Daniel webster, once wrote: we may
be townd upon an ocean where me can see 100
land - mor, mechan, the sun or stars. But there
is a chart and a compans for us to study,
to cannelt, and to obey. The chart is the
Constitution. " Fn mady two hurded years
the Constitution - four pages in John
Handli flowing hand from sened as
bluevit for freedom of do not from
how many of the party men who signed
For meanly two hundred year the Constitution
has endened, with relatively few
amindments, as a bluegrint for freedom.
As me approach the beientenmal of the
signing of the original form pager of the
Constitution, at Perlicalphia n September 17, let are
1787- it is important not only reflect
on the swinden of the Framers but also redadisate
ownelves to the values
embodied in the document they
Faj are celebrate not simply the historial
event that took place in Philadelphia on
Installe
Sextenber 17, 1787, but the process by
torm.
which me govern ourselves today.
The very notion of self- government was
novel when the Framers enbashed upon the
in
experiment of the Constitution James
the
madism, in the Federalist Pagers, found it
recevery to singe his fellow citizens not to
appose natification of the contitution because
of the novelty of its design. Madium anywed
that it was the glory of the American
people that they were willing to enbark
on the antried experiment of self-rule. "To
this manly spirit posterity will be indebted
for the poncession, and the world for the
example, of the murerous innovations displayed
on the American that in favor of prints rights
and public happiness. "
Madism's audit has proved time.
We are idebted to the France for their brave
withingren to govern themelver, and the
world is undebated to amin for the
of
y
example it catines X smile
relf-
1
But while the France
had to oversome the from of the new we
must now equally fight against the complaing
of the old. There is the danga that a
people that has kind with freedure and faw
for two centuries may forget how save and
condition
precious that it is.
and
the
would
will
show
that rode, closhed G Calil
make sandy Custitutions that are
the mel John and mookey of the
better may to fight this
He study of the contitution
The Lifter between
ading Cutitit has in the factor
an active I abound intying is meany
to the about fronting of own contituted
child
India
system. As John Marchall, who how
a this a two about the callet, were
write, " the people make the Conditate, I
the people can uncle it. At in the creatme
of their own will, and lives only by their
will." All of me have an obligation
to study the constitute and activity particute
in the system of relf- government it
They afo Use an With to the commy any mts A men who to
pleased this lives I samed form that
me
sht be bee, R to the wathers
then
who
he
they
live
an
fristy to preme that freed, and X -
children I holder! sheld There is
better the than this and X
for refuniting freed 1 I unit and and with the to the bluegist
natures it excludies For the tranting —
of the Constitute who is Due mate not to moly but to to the
femins of there if, and
the vigitare and sacities C the book
present it that the years.
not only to ourselves and
our posterity, but
This in an Misation we owe /
- to the Framen, who miked
everything for freedam, and baboat X actiblish
institution to gream feedare His and As
the brave men and
woren thoughout our history who have tak
presered the contitution, after
at the cost of their lives. M fundly
Missing to I - -
withing person can le lost think
ynorse The is - better
time than this brientennial period to
refairiting ownelves with the constitution,
and redadinate annulves to the volues it
embadies.
The Declaration of Independence not only proclaimed our
freedom from Great Britain, it also set forth the principles
for which the Founding Fathers were willing to pledge their
lives, fortunes, and sacred honor: "that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness." The battles of the
Revolution secured the independence proclaimed in the
Declaration; it remained for the revolutionaries to put the
ideals of liberty into practice. History has recorded many
tragic episodes that bear witness to President Filmore's
caution "that revolutions do not always establish freedom."
Our's did, largely because it was shortly followed by the
framing of the Constitution, what the great American
historian George Bancraft termed "the most cheering act in
the political history of mankind."
2
One of our ablest statesmen and constitutional lawyers,
Daniel Webster, once wrote: "We may be tossed upon an ocean
where we can see no land -- nor, perhaps, the sun or stars.
But there is a chart and a compass for us to study, to
consult, and to obey. The chart is the Constitution." For
nearly two hundred years the Constitution has endured, with
relatively few amendments, as a blueprint for freedom. As
we approach the bicentennial of the signing of the original
four pages of the Constitution, let us not only reflect on
the wisdom of the Framers but also rededicate ourselves to
the values embodied in the document they drafted for the
ages. For in commemorating the bicentennial of the
Constitution we celebrate not simply the historical event
that took place in Philadelphia on September 17, 1787, but
the process by which we govern ourselves today.
The very notion of self-government was novel when the
Framers embarked upon the experiment of the Constitution.
3
James Madison, in the Federalist Papers, found it necessary
to urge his follow citizens not to oppose ratification of
the Constitution because of the novelty. of its design
Madison argued that it was the glory of the American people
not blindly bound to the part but withing A rely
"ther
that they were willing to embark on the untried experiment
good
experience
of self rule "To this manly spirit posterity will be
in
chantey
their
indebted for the possession, and the world for the example,
the
future,
of the numerous innovations displayed on the American
theater in favor of private rights and public happiness."
Madison's prediction has proved true. We are indebted to
the Framers for their brave willingness to govern
themselves, and the world is indebted to America for the
example it continues to provide of democratic
self-government. But while the Framers had to overcome the
fear of the new we must now equally fight against the
complacency 5 OF the old. There is the danger that a people
4
that has lived with freedom under law for two centuries may
forget how rare and precious that condition is.
An active and informed citizenry is necessary to the
effective functioning of our Constitutional system. As
Chief Justice John Marshall, who knew a thing or two about
the Constitution, once wrote, "the people make the
Constitution, and the people can unmake it. It is the
creative of their own will, and lives only by their will."
All of us have an obligation to study the Constitution and
actively participate in the system of self-government it
establishes. This is an obligation we owe not only to
ourselves and our posterity, but to the Framers, who risked
everything for freedom, and to the brave men and women
throughout our history who have preserved the Constitution,
often at the cost of their lives. There is no better time
than this bicentennial period to refamiliarize ourselves
with the Constitution, and rededicate ourselves to the
values it embodies.
The central challenge confronting the Framers of the
Constitution was to create a stronger national government
without at the same time permitting that government to
threaten the liberties so recently won. Experience under
the Articles of Confederation had demonstrated the
inadequacies of a weak government "destitute of energy," yet
the Framers' experience under the colonial rule of George
III had demonstrated the threat posed by strong government.
The challenge was to reconcile those two experiences, and
create a government strong enough to serve the people, yet
not strong enough to become the master rather than the
servant of the people. As Madison wrote, the difficulty was
"combining the requisite stability and energy in government
with the inviolable attention due to liberty and to the
republican form"
The solution embraced by the Framers was to diffuse
governmental authority. Power was to be shared among
separate institutions -- The Legislative, the Executive, and
the Judiciary -- in order that no single branch could become
so powerful as to threaten the liberties of the people. In
considering the allocation of authorities in the
Constitution, it is important to keep in mind the purpose of
nothing less than
this considered allocation the preservation of liberty.
This is what Hamilton meant when he wrote that the unamended
Constitution "is itself, in every rational sense, and to
every useful purpose, a bill of rights." Our liberties have
been preserved in large part because of the allocation of
powers in the Constitution. That allocation has kept
government the servant rather than the master of the people,
and has accorded the people the freedom to enjoy their
rights.
7
unamended
This central fact -- that the Constitution is itself a bill
of rights, and that the allocation of powers in the
Constitution is preservative of liberty -- imposes a special
obligation on those who hold office under the Constitution.
Those officials must not only discharge their
responsibilities but must also respect the constitutional
s
restraints on their office and, equally important, preserve
the constitutional prerogatives of their office. Any
individual President is a trustee of the powers of the
office, and cannot will forfeit those powers for expediency or
any other purpose. There may be many tejos instances when a
President would prefer to have another branch make a difficult
decision or take action vested in the executive, or when a
President would be willing to countenance an intrusion on
his powers to achieve a particular result. At such times
the Chief Executive must recall that powers were allocated
in the Constitution not simply for efficiency but to
preserve liberty. In defending the Constitutional
8
prerogatives of the office the President is protecting
liberty by fulfilling the Framers' design.
The Framers looked primarily to the President to provide the
critical element of "energy" in the government. The problem
with the government of the Articles of Confederation was
that it was "destitute of energy." The drafters of the
Constitution redressed that problem by vesting in the
Executive "competent powers" to lead the Nation. As
Hamilton wrote:
Energy in the executive is a leading character
in the definition of good government. It is
essential to the protection of the community
against foreign attacks; it is not less
essential to the steady administration of the
laws; to the protection of property against
those irregular and high-handed combinations
9
which sometimes interrupt the ordinary course
of justice; to the security of liberty against
the enterprises and assaults of ambition, of
faction, and of anarchy.
The President's popular mandate justified this grant of
authority. His just powers are derived from the consent of
the governed. Other than the Vice President with whom he
runs, the President is the only official in our government
elected through a process involving all the voters. Only
the President can claim to speak for all the people,
because, as Hamilton wrote, his selection looks "in the
first instance to an immediate act of the people of
America. " The office of President has "a due dependence on
the people, and a due responsibility."
Perhaps the most pervasive responsibility of the President
is to administer the executive branch. The Framers of our
10
Constitution were practical men who recognized, as Hamilton
wrote, "that the true test of good government is its
aptitude and tendency to produce a good administration. II
The people look ultimately to the President to ensure the
efficient performance of duty by the millions of federal
employees scattered among the various departments and
agencies across the land. I doubt that any of the Framers,
prescient
pergistent as they were, could have imagined the size and
scope of today's federal establishment. They nonetheless
afforded the Presidency the tools to meet the responsibility
vested in that office "to produce a good
administration."
The key constitutional authority implementing the
President's responsibility for administration of the
government is his appointment power. The Constitution
provides that the President shall nominate, and by and with
the advice and consent of the Senate shall appoint, the
officers of the United States. The Framers gave the
President the responsibility to "take Care that the Laws be
faithfully executed," and gave him the power to appoint the
officers that assist him in discharging that responsibility.
In the landmark case of Myers V. United States, Chief
Justice Taft, the former President, wrote that it was a
"reasonable implication" from the President's obligation to
execute the laws that "he should select those who were to
act for him under his direction in the execution of the
laws." The Chief Justice went on to recognize the principle
that the President's appointment power carried with it the
corollary power to remove those officers in whom he could no
longer place his confidence: "as his selection of
administrative officers is essential to the execution of
laws by him, so must be his power of removing those for whom
he can not continue to be responsible." while there are
at
limited unimatures in which officers are not
will
removable by the Present, the basic
rule is that the Priduct appoints and may never the
office of the United States. This power, - the Frances
recognized, is neceive it the Preduct in A he requireble
for the faithful execution 1 the lows and the proving
administration."
12
The inviolability of the President's responsibility to
execute the laws was further ensured by what has come to be
known as the "Incompatability Clause." In a sharp departure
from parliamentary systems, the Framers provided that "no
Person holding any Office under the United States, shall be
a member of either House during his Continuance in Office."
Article I, section 6. Those holding high office in the
executive branch -- indeed, the President himself - may not
simultaneously serve in the Legislature. This ensures full
loyalty of the officers to the President, and firmly fixes
responsibility for the administration of government in the
President. It has guaranteed a clear line of demarcation
between the Legislature and the Executive, leaving each to
its own responsibility in the Constitutional scheme.
The challenge confronting the modern Presidency is to
"produce a good administration" as the Framers intended when
the Federal establishment has grown so far beyond anything
A
During my first month in office, & inded
an cigaretive under that constituted an important
step in this dintin. Executive Order 12291
for the first time provided effective and condinated
management of the regulating process. cholder
the executive adm, 100 all Febul regulation
must be reviewed by the office of mayment and
Bulset before being ind to datenie whather
their social benefits will speed their social carts.
The Adminitation from mind a commins statement all
regulating roling, and artableted the mechanism
to anime that this poling is reflacted in the
active of idvided asercies.
The not result has
for the birth
been that Lth Fedel Register, which records
twice
new regulatory active, has from shorter
for these coverative your other
initiaties without instude the
the Cannil n management
1
Improvement, an interving committee charled with
recent
simproving management I administration thoughout the
government;
Dis
they
about
funturing
of
the
Fabel
the
mader
Priducts
itics
X
Path white 1th
Francis
The Franks that Ne
cart
-
a Executive produce good J
contr
\
Guing
Effice
Given the size and same of the Federal beneaucy,
the Framers' advantis that the Ementie
in not
produce a and administration " requires such
vate,
careful and cartinus attention to
and
1th
regulates and request reform.
DAt
2th
if
the
In
the same time, however, it is
Into who 1
fitty to cavida it the Feded Government
int
is type to to to much. The Fraven
today
for they And amount. the boyan fitty
vest in the
(the responsibility -
did not with national government to solving
all the publears that might amount the
citying of the Depublic; the early
P
Americans mere too sialous of this breadom
to sanction much an expansive view of
central authority. This Administration
reland
at is the resumbility of the Priduct not
only to manage government effeciently, but
also to offer leadership
in recogning plat spending by government must
be himited to there finatine which are the
progrem responsability of government, I twing
by government must be birted to providing
revenue for legitite suchment purposes.
13
they could have imagined. It is an amazing fact that there
are more Federal employees in America today than there were
people when the Framers drafted the Constitution. Perhaps
President Washington could play an active role in
supervising the details of the first administration; it is
now the responsibility of his successors to create the
mechanisms for control and coordination of the executive
branch.
[E.O. 12291 insert]
A
[Growth of Federal Government]
The President has no more important responsibility under the
Constitution than the conduct of foreign affairs. As John
Marshall noted on the floor of the House of Representatives,
"The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations." In the famous Curtiss-Wright decision of 1936,
the Supreme Court agreed with Marshall's assessment: "In
this vast external realm, the President alone has the power
to speak or listen as a representative of the nation." The
President's powers in this area derive from the general
grant of executive power, and the more specific grants of
authority to make treaties appoint our ambassadors and
receive those of other nations, and his role as Commander in
Chief of the armed forces.
The Framers recognized that of the two democratic branches
only the Executive possessed the requisite attributes for
the successful conduct of foreign relations. Hamilton noted
in his description of the executive that "Decision,
activity, secrecy, and dispatch will generally characterize
the proceedings of one man in a much more eminent degree
that n/a the proceedings of any greater member," and John Jay --
himself one of our most successful early diplomats -- argued
15
that "the President will have no difficulty to provide"
those qualities, though/beyond the capability of a basically
deliberative body such as Congress. As Hamilton argued,
"The qualities
indispensible in the management of foreign
negotiations point out the executive as the most fit agent
in those transactions
"
When it came to the defense of the Nation, the Framers were
even more unambiguous. Hamilton, who served at General
Washington's side during the War of Independence, knew that
"the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of
the common strength; and the power of directing and
employing the common strength forms a usual and essential
part in the definition of the executive authority. " In
the
and
of
defense
foreign affairs the Nation must speak with one voice, and
only the President is capable of providing that voice.
B
The 1970 a Jam a rapid rise in Cymil
efforts to
duity
affect
the
formalation and internation of foreign policy
by the Executive. Over 100 requeste prohibiting
and restrictions on Pridutil authority were
enacted in the areas of trade, home rights,
arms sales, foreign and, intelligine opentions,
and the dripated of trages in times of crisis.
Scholars and officials have
prime
contitutionality
disagreed
theme Min leffering views
on the constitutionality of reveral of there
initiative, and a Dicunsion of the legal
issues is beynd the score A this anticle.
what is invortant to note, however, is
that
the
relatively
resert
foreign her
by
Congress
efforts to partripate in the development of
America foreign poling must be
accorpanied
by remimbility
state
for the development of bigantism
We need to reston the honorble American
tradition that intime solitics stop at the
water's adre. The Frame recognized that
effective foreign whing sep deward that
the notion speck with are mine, ada
major
note
attents
foreign
$
Congress mats Ae Cyres - august
its foreign poling make it must surve that
the realt is not moly that America
presents a Discordunt discordpant casaphay cacophour x the world,
to the detivent of its security and intents.
The Print - "the role man 1th noting in its
extend relation"- work twiten
davelop must continully such the
means 1 developing a brinting, Logilate- Expentive
consensus on America's role in the world and
the means of referending that note. AR Crews
reviewing inter the foreign policy receive it to
must recogize a renter resumbility for Dealois
such a commensis.
This is not to say that Congress has no role in the
development of foreign policy. On the contrary, the Framers
required the assent of two thirds of the Senators to a
treaty, and of course only Congress possesses the power to
declare war. Even beyond those defined roles the support of
Congress has been indispensable to an effective foreign
policy throughout our history.
[Bipartisan Foreign Policy insert, 10-12]
B
I
Apart from the President's executive functions, the
Constitution accords him a significant role in the
legislative process. The President has not merely the power
but the duty "from time to time to give to the Congress
Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge
necessary and expedient." Art II, section 3. The people
have grown to expect leadership from the President not only
17
in executing the laws but also in presenting a program to
Congress for consideration. The responsibility runs from
the annual budget to substantive legislative reform.
Perhaps the most prominent of the President's legislative
powers is his qualified veto power. This power is qualified
in the sense that a bill returned by the President with his
disapproval can nonetheless be enacted by a two-thirds vote
of both Houses. The Framers accorded the President a veto
power for two purposes. First, the Framers recognized the
"propensity of the legislative department to intrude upon
the rights, and to absorb the powers, of the other
departments," and provided the President a veto so that he
could defend the prerogatives of his office against
legislative encroachment. The second purpose of the veto is
as "an additional security against the enactment of improper
laws. " As Hamilton wrote:
18
The primary inducement to conferring the power
in question upon the executive is to enable him
to defend himself; the secondary one is to in-
crease the chances in favor of the community
against the passing of bad laws, through haste,
inadvertence, or design.
The unique perspective the President can bring to bear in
reviewing legislation was recognized by Chief Justice Taft:
The President is a representative of the people
just as the members of the Senate and of the House
are, and it may be, at some times, on some subjects,
that the President elected by all the people is
rather more representative of them all than are the
members of either body of the Legislature whose
constituencies are local and not countrywide.
The Supreme Court recently reiterated the importance of the
veto power in the Framers' design in the landmark INS V.
Chadha decision. That decision struck down the "legislative
veto" device, whereby Congress reserved to itself, one
House, or even a committee the authority to block agency
regulations. The court, in an opinion by the Chief Justice,
ruled that such legislative vetoes were unconstitutional, in
part because they purported to permit Congress to act
without presenting its action to the President for approval
or disapproval. The Court ruled that this violated the
carefully devised scheme of the Framers.
Many had looked to the legislative veto as a possible means
of restoring control by the people's elected representatives
over the burgeoning Federal bureaucracy. That option is no
longer available, for, as the Court noted:
The choices we discern as having been made in the
20
Constitutional Convention impose burdens on govern-
mental processes that often seem clumsy, inefficient,
even unworkable, but those hard choices were con-
sciously made by men who had lived under a form of
government that permitted arbitrary governmental
acts to go unchecked. There is no support in the
Constitution or decisions of this Court for the
proposition that the cumbersomeness and delays
often encountered in complying with explicit
Constitutional standards may be avoided, either
by the Congress or by the President.
It can now be hoped that Congress, which can no longer
review particular agency action through the legislative
veto, will take greater care in delegating authority to
agencies in the first place. It is no longer possible for
Congress to avoid the hard policy choices, delegating vast
power to agencies with only vague guidance as to its
21
exercise, with the reservation that particular agency
actions can be unilaterally reversed. The Chadha decision
also clarifies that the executive is solely responsible for
executive agency action, and heightens the responsibility of
the executive to ensure that such action is consistent with
the statutes authorizing the action.
The intent of the Framers in providing the President a
qualified veto power has been frustrated to a large extent
by the development of the Congressional practice of
combining various items in a single appropriations bill.
The Framers undoubtedly anticipated that Congress would pass
separate appropriations bills for discrete programs or
activities, and the President would be able to review each
program. Until about the time of the War Between the
States, this was the practice of Congress. Since that time,
however, Congress has increasingly combined various items of
appropriation in omnibus appropriations bills. This
22
practice makes it difficult for the President to discharge
the responsibility vested in him by the Framers, because he
cannot consider the individual items of appropriations
separately but must either veto or approve the package as a
whole. When he must either block needed programs so that
wasteful ones will not be enacted, or permit wasteful ones
to slip through under the protective signing of needed
programs, the President is prevented form using his veto as
the Framers intended, "to increase the chances in favor of
the community against the passing of bad laws, through
haste, inadvertence, or design."
It is for this reason that we have proposed restoring the
Framers' original design by passing a constitutional
amendment to grant the President line-item veto authority.
The constitutions of no fewer than 43 states grant some such
authority to the governor, and the experience at the state
23
level suggests a line-item veto would work well at the
Federal level.
The powers of the Presidencey are limited powers, and the
President discharges his constitutional responsibilities in
a system according other powers to the coordinate branches
of the Legislature and the Judiciary. As the Supreme Court
has remarked, there is a "never-ending tension between the
President exercising the executive authority in a world that
presents each day some new challenge with which he must deal
and the Constitution under which we all live and which no
one disputes embodies some sort of system of checks and
balances." The President is charged with the faithful
execution of the laws, but Congress enacts the laws and
through its legislative authority directly affects the
President's ability to administer the Federal Government.
The President appoints the officers of the United States,
but Congress establishes the offices and the Senate must
24
approve the President's nominees to fill those offices. The
President is responsible for the conduct of American foreign
policy, but only Congress can declare war and the Senate
must approve treaties negotiated by the President. And
while, as Justice Frankfurter noted, the Framers "did not
make the judiciary the overseer of our government," it has
bur
been established at least since Markey V. Madison that, in
an appropriate case, executive action is subject to judicial
review. The members of all three branches take an oath to
uphold the Constitution, and it is a tribute not only to the
genius of the Framers but also to the statesmanship of those
who have held office under the Constitution that the system
has worked as well as it has.
Thomas Jefferson called the Presidency "a splendid misery."
The Framers intended, as Hamilton wrote, that "the executive
should be in a situation to dare to act his own opinion with
vigor and decision." The President has at his disposal the
25
advice of learned advisors, and he can consult with the
Congress, but the difficult and potentially momentous
decisions be must make are, in the final analysis, his
Constitution vested the
to make
alone The ultimate guide must be his own conscience. Our
Executive the
most tested President, Abraham Lincoln, announced a standard
for Presidents not been improved upon:
making making those that decisions has
"I desire to conduct the affairs of this
Administration that if, at the end, when
I come to lay down the reins of power, I
have lost every other friend on earth, I
shall at least have one friend left, and
that friend shall be down inside of me."
As we prepare to commemorate the bicentennial of the
Constitution, let us honor the memory of the Framers who
drafted our blueprint for freedom, as well as those like
Lincoln, who did not permit their dream to die. But let us
26
also recognize the workings of a greater force. The signers
of the Declaration of Independence acted with "a firm
reliance on the Protection of Divine Providence," and
Madison, reviewing the work of the Constitutional
Convention, noted that "It is impossible for the man of
pious reflection not to perceive in it a finger of that
Almighty hand which has been so frequently and signally
extended to our relief in the critical stages of the
revolution." What President Cleveland said on the occasion
of the centennial of the Constitution rings even truer
today:
"When we look down upon 100 years and see the
origin of our Constitution, when we contemplate
all its trials and triumphs, when we realize how
completely the principles upon which it is based
have met every national need and national peril,
how devoutly should we say with Franklin, 'God
governs in the affairs of men. "