(Guest Commentary) Mike Farris – Citizens for Self-Governance – Senior Fellow for Constitutional Studies, co-founder of the Convention of States Project
The presidential election is scary. The “fright factor” of 2016 (theme: The Other Candidate is Far Worse) does not arise merely from the two seriously flawed candidates that have somehow risen to the top. People are legitimately afraid that, no matter who is elected president, our nation’s future is in genuine jeopardy.
Why should a president have the capacity to destroy our nation? What kind of power goes with that office that would put freedom itself in jeopardy?
Yesterday, I was teaching on the subject of “Presidential Powers” in my Patrick Henry College course on Constitutional Law. Students are assigned to read Federalist No. 69 written by Alexander Hamilton (who was a famous Broadway actor—or something like that). In this essay, Hamilton defends the Constitution against the charge that it creates a President with the powers of a king. In point after point, the public was given assurances concerning the important constitutional limitations on the power of the presidency.
However, as we are about to do, if one reviews the differences between a king and the president’s role as it functions in real life in 2016, we find that the differences between the U.S. President and the British Monarch (as that office existed in 1789) have been essentially obliterated.
The 1789 Differences between the President and the British King:
- The King was a permanent and hereditary position. The President only served for a renewable four-year term. Despite the tendencies of having repeat presidents from the same family, this is one difference that is still essentially intact.
- The King was above the law and could not be brought to justice for criminal or unjust behavior. The President can be impeached and tried for criminal behavior. The reality is that this difference is largely ignored and it extends to other powerful people. The reason that Hillary Clinton is not on trial today for her violations of our national security is that she is simply too powerful to mess with. The Founders projected a Congress with spines. The spineless variety we have been electing is the real reason that this form of check on the abuse of presidential power has been so utterly lame.
- The real failure of the constitutional system is revealed when considering the President’s role in law-making. The King possessed an absolute veto. The president’s veto can be overridden by super-majority votes in both houses of Congress. However, the King could never make laws. Nothing in the Constitution suggests that the President has the power to make laws—indeed, it says to the contrary: that all law-making power is vested in Congress. Today, if the President can’t get the laws he wants from Congress, using his phone and pen, he makes the laws he desires. Obama’s executive edicts that tell the states that if they don’t implement his desired policies on transgendered bathrooms and locker-rooms, they will lose all federal education funding is 100% a presidential law. The King of England had no such power in 1789. In this sphere, the presidency has become more than a constitutional monarch like England; he is much more like a potentate with absolute power.
- While both the King and the President have the power of commander-in-chief, Hamilton noted the important difference about starting wars. The King made the unilateral decision to commit the nation to war, whereas under the Constitution, only Congress could declare war. In practice, Congress has not declared war since World War II. Every war since then has been commenced on the sole decision of the President—a very king-like history.
- In the area of foreign relations, there was a very important difference between the power of the President and that of the King. The King alone made treaties. Under the Constitution, the President negotiated treaties, but the United States did not become bound to any treaty until it was ratified by two-thirds of the U.S. Senate. However, last week, President Obama announced that he alone had ratified an important multilateral climate treaty. It was made in a joint announcement with China. Kings have such powers. The President is not supposed to have this authority. There are over 9000 documents that are considered treaties under international law that the United States has approved by the sole decision of the President. This is not an Obama problem. This is a presidential power problem.
- The King could create offices and fill them at his pleasure. The President could only appoint people to offices created by Congress and the most senior appointments required approval by the U.S. Senate. However, Presidents have taken to appointing “czars”—offices that are not found in the U.S. Code and—and fills them at his pleasure. It is a very czar-like practice. Russian kings make an appearance in our review.
- Kings could make “denizens of aliens.” Presidents could not do so. A “denizen” is a lawful, permanent resident of a country, state, or city. Presidents were not supposed to have the king-like power to change the status of aliens coming to this country. We all know that this area has been replete with king-like edicts impacting millions of aliens.
Hamilton concluded that it was totally erroneous to claim that “unlike things resemble each other.” The King was different than the Presidency outlined in the Constitution. He said that it was equally spurious to claim that “elective and periodical servants of the people” would become “an aristocracy, a monarchy, and a despotism.”
The office that the Founders created should not cause us anxiety. On the other hand, such a limited office might not attract those who hunger for power, prestige, and self-glory.
The solution is not found in elections alone. We must reduce the power of the presidency back to its original contours. Only the Convention of States can do that.
If we want to stop being afraid of presidential elections, then we must stop giving that office all of the trappings of a monarchy.
Michael Farris is the Chancellor of Patrick Henry College and Chairman of the Home School Legal Defense Association. During his career as a constitutional appellate litigator, he has served as lead counsel in the United States Supreme Court, eight federal circuit courts, and the appellate courts of thirteen states.
Farris has been a leader on Capitol Hill for over thirty years and is widely respected for his leadership in the defense of homeschooling, religious freedom, and the preservation of American sovereignty. A prolific author, Farris has been recognized with numerous awards, including the Salvatori Prize for American Citizenship by the Heritage Foundation and as one of the “Top 100 Faces in Education for the 20th Century” by Education Week magazine.
Farris received his B.A. in Political Science from Western Washington University. He later went on to earn his J.D. from Gonzaga University School of Law, and his LL.M. in Public International Law, from the University of London.
Mike and his wife Vickie have ten children and 19 grandchildren.