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Saturday, April 11, 2015

Congress: the Constitution, and Contemporary Politics -- President and Congress, Domestic and National Security Policy

Notes for a seminar at the Robert H. Smith Center for the Constitution, Montpelier, Virginia:

A video about the other main author of The Federalist.  (And a comparison)


A second advantage of allocating power according to the principle of the separation of powers is that it promotes efficiency, at least in one respect. Because the three functions are different in character, different qualities are required for their effective exercise. Each institution can be structured in such a way as to carry out its own function most effectively. The executive power can be housed in an in an institution headed by one individual in order to allow rapid and secret action, the legislative power in an institution that provides for broad representation and encourages deliberation, and the judicial power in an institution that assures knowledge of the law and detachment.

But....executive actions are much more than executive orders.

Federalist 70:  
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 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....
There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.
The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. [Could be on the test!]
As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. 
Federalist 78:
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. 
John Marshall, Marbury v. Madison:
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Federalist 8: "It is of the nature of war to increase the executive at the expense of the legislative authority."

Tocqueville, Democracy in America: 
If executive power is weaker in America than in France, the reason for this lies perhaps more in circumstances than in the laws. It is generally in its relations with foreign powers that the executive power of a nation has the chance to display skill and strength. If the Union’s existence were constantly menaced, and if its great interests were continually interwoven with those of other powerful nations, one would see the prestige of the executive growing, because of what was expected from it and of what it did. 
House Judiciary Committee hearing, February 26, 2014, prepared statements of Jonathan Turley and Christopher Schroeder

Senator Obama 2007 interview

President Obama and the Iran negotiations

Senator Obama on signing statements:

President Obama's signing statements