The debate about presidential power has been raging long before the Great Pumpkin arrived on the scene. However, he and his minions, like William Barr, seem determined to take monarchial or imperial presidential powers to new levels. As such,
the following long excerpt is from an article by a law professor who has been intensively examining the background to Constitutional authority of the 'executive'. I have also left some links provided by
The Atlantic to related articles.
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These aren’t selective examples. Pick a random recent controversy about presidential power, and you’re almost certain to find the president-as-king claim woven into the debates. During the George W. Bush administration, the argument was used to defend the torture of prisoners, the evasion of habeas corpus, and the claim of authority to invade Afghanistan and Iraq without congressional authorization. During the Obama administration, the argument surfaced in debates about the administration’s defiance of a statute recognizing Jerusalem as the capital of Israel and about the use of force against Libya. And supporters of the Trump administration have supercharged the claim, advocating a breathtaking theory of indefeasible imperial prerogative in areas ranging from the Russia investigation and workaday congressional oversight to immigration law and the bombing of Syria.
After years of research into an enormous array of colonial, revolutionary, and founding-era sources, I’m here to tell you that—as a historical matter—this president-as-king claim is utterly and totally wrong. I’ve reviewed more than a thousand publications from the 17th and 18th centuries for each instance of the word root exec-, and have read most of those texts from cover to cover with the topic of presidential power squarely in mind. I’ve read every discussion of executive power and presidential authority that appears in the gigantic compilation of archival materials known as the Documentary History of the Ratification of the United States Constitution. And with the help of a team of research assistants, I’m most of the way through flyspecking the full records of the Continental Congress—including committee reports, floor debates, and delegate correspondence—with the same question in mind.
All this work has left me with both the confidence to share this conclusion and the sense of obligation to do so as bluntly as possible. It’s just not a close call: The historical record categorically refutes the idea that the American revolutionaries gave their new president an unspecified array of royal prerogatives. To the contrary, the presidency that leaps off the pages of the Founders’ debates, diaries, speeches, letters, poems, and essays was an instrument of the law of the land, subject to the law of the land, and both morally and legally obliged to obey the law of the land.
If you had the same third-grade history class I did, you might think this all goes without saying. But in the realm of constitutional law, these findings represent a tectonic shift.
For more than two centuries, jurists and statesmen have intoned that “ours is a government of limited powers.” That proposition is the foundational principle of federal power. The Constitution did not grant Congress open-ended authority to regulate in the public interest. Instead, the Founders wrote a laundry list of highly specific legislative authorities. This enumeration strategy, the Supreme Court has explained, is why courts must carefully consider the national government’s legislative limits: “If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted.” From this starting point comes the endless constitutional sparring over the scope of the powers to regulate commerce, to tax, to spend, and to enter into treaties—just to name a few. Almost everyone agrees that unless legislators can point to an affirmative grant of constitutional authority, Congress simply can’t act.
A funny thing happens, though, when it comes to the presidency. Suddenly you see hand-waving that would be laughed out of the room just about anywhere else. Here’s Justice Robert Jackson on executive power, in 1952:
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.
This is one of the most celebrated opinions in constitutional history. Is Jackson seriously advising us to approach problems of presidential power by meditating on curtsying wheat and overweight cows?
The answer is obviously no. But such sorcerous gesticulations are motivated by an inconvenient fact: The constitutional text doesn’t actually authorize the president to do very much. It enumerates the veto, appointments, and pardon powers. It grants the president “the executive power” and the office of commander in chief. It authorizes the president to receive foreign ambassadors, demand reports from his subordinates, and deliver a State of the Union address. But aside from a few miscellaneous process authorities, that’s just about it.
The way president-as-king theorists see it, this fact is more than just inconvenient; it’s downright dangerous. Can we imagine a country, they ask, whose president doesn’t have the authority to conduct diplomacy, recognize foreign governments, terminate treaties, acquire territory, fire officers and employees, or announce national policy? Is it conceivable, they wonder, that our national charter would fail to include an escape hatch—“In case of emergency, break this law”—for any legal requirement that interferes with our national security? For president-as-king theorists, to ask these questions is to answer them. And so they claim that the first three words of Article II—“the executive power”—vest all the authorities I’ve just described and more.
As a historical matter, my research shows that this claim is dead wrong. “The executive power” granted at the American founding was conceptually, legally, and semantically incapable of conveying a reservoir of royal authority. The real meaning of executive power was something almost embarrassingly simple: the power to execute the law. Overwhelming evidence for this point pervades both the Founders’ debates and the legal and political theory on which their discussions drew. ...
Also, related to relative constitutional powers is this article below that discusses the implications of two current Supreme Court cases. One of which is ironically based upon the case of a sex offender, and if he wins it could severely roll back the so-called administrative state, the wet-dream of many real and phony conservatives. However, as the above excerpted article discusses, the legislative branch had/has every constitutional authority to delegate bureaucratic authority over vastly complex issues. And, Congress has every Constitutional right to question those bureaucrats and even the Great Pumpkin, and change their prime directives if need be. Such advocates of imperial presidential power, whatever their motivations, are counter-revolutionary ... to the (Liberal) American Revolution.
https://www.politico.com/magazine/story/2019/06/02/supreme-court-gundy-rapist-227038
