Posts
Introduction
This is the
unedited paper I wrote for my senior seminar back in 2007. I am posting it as a sort of trip down memory
lane during our current apocalypse.
I have
become a better writer since creating this.
I have
become much better informed since writing this.
I am a very
different person than when I wrote this.
------------------------------------------------
Congress and the
President: Wartimes Past
In an opening period of
the Civil War the United States Congress was not in session, and half of its
regular members were no longer acknowledging the authority of the body. Numerous persons within the bounds of
Washington were potentially tied to the southern states, or were at the very
least sympathetic to the cause of the Confederate States. As a defensive measure President Abraham
Lincoln suspended the Writ of Habeas Corpus, and began to detain people who
were under suspicion of treason and insurrection. The problem with this practice is that the
Writ is specifically cited within the section of the Constitution under which
the duties of the Congress are addressed, and is not mentioned within the scope
of Presidential powers or duties.[1] The President had fully exceeded his
authority.
The President did
explain this away once the Congress managed to reconvene months later, and few
could have disagreed with the immediacy of such a function needing to be
carried out. “It cannot be believed the
Framers of the Instrument intended that in every case, the danger should run
its course, until Congress could be called together; the very assembling of
which might be prevented, as was intended in this case by the rebellion…”[2] And its continued use throughout the war went
unchallenged until the practice had already begun to include those who
supported piece with the Confederacy and dissolution of the Union, and wasn’t
stopped until the war was ending.
Essentially the
President can justify assuming powers of the Congress in the case of
immediacy. But since immediacy is not
clearly defined there is nothing to prevent the President from assuming other
duties of the Congress if they are in need.
One could say that the ability to appoint members to positions when
Congress is out of session could be expanded to include emergency appointments
and executions of all Constitutional duties when the Congress is out of
session.[3] How this would work is that the President
perceives a vacancy in law that requires immediate consideration, and an
immediate solution. Since the Congress
is out of session, the President creates the law, mandating that the legal
position needed to be filled. The law
will expire when the Congress returns to session, but then there exists
potentially a political momentum. If the
Congress says that the President exceeded his authority and squashes the
emergency law, then the President could frame the argument that the Congress
fails to act in the best interest of the American people and has forced the
President to take action, gaining a political win which could be turned into
another emergency legal appointment.
Alternatively if the Congress sees the potential effectiveness of the
new law, they could simply endorse it, and cement this emergency law
construction as an assumed power. None
of this has happened, but it could happen using the idea that the President
assumes Constitutional powers from the Congress when they are out of
session. One might question then why the
President does not use this assumed position of additional authority to declare
war, and the answer is that it is not necessary for the President to declare
war to order military forces into armed conflict. The President does not want to use a taboo
subject such as war, when he is under no legal obligation to do so.
The ability to assume
additional Constitutional power also comes with the process of waging war. During the beginning of the Second World War,
President Franklin D. Roosevelt addressed the Congress that price control over
domestic products was imperative to prevent the spiraling fall of the United
States economy and an explosive growth in the cost of living. Addressing Congress, who had at this point
already declared war, the President stated “In the event that the Congress
should fail to act, and act adequately, I shall accept the responsibility, and
I will act.”[4]
This is an instance that the President
has threatened to assume Congressional powers under the need of immediacy. This was as I have stated before done during
a time of war, a special set of circumstances that President FDR underlines as
giving him authority to assume such powers.
“The President has the powers, under the Constitution and under
congressional acts, to take measures necessary to avert disaster which would
interfere with the winning of the war.”[5] The aforementioned Constitutional powers are
assumed under an incredibly wide interpretation, and I have been unable to find
such Congressional acts. President FDR
is ordering Congress to follow his directions, or they will be superseded by
the immediate needs of the war.
______________________________
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[1]
Constitution Article 1, Section 9
[2]
Abraham Lincoln, Message to Congress in Special Session
[3]
Constitution Article II, Section2
[4]
Franklin D. Roosevelt, Message to Congress
[5]
Franklin D. Roosevelt, Message to Congress
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