ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Hello Ricochet members,
Lately I've been working on my master thesis about the US Presidency. I hope there are some people out there to help me about solving the issue concerning the roots of the limits of the President.
What I understand from the books and Supreme Court decisions is that the President is not too much limited by the Constitution but limited more with the Supreme Court's decisions by interpretations. Am I right about it ?
***
[Claire's note: Turkey will soon be confronting major questions about its own constitution. Prime Minister Erdogan has expressed interest in moving to a Presidential system, which could be introduced in a referendum. So when a Turkish constitutional lawyer asks how such a system might work, and attempts to assess the way America has constitutionally and historically checked the powers of the president, think of that question not as dry old ConLaw 101, but as ConLaw 911: The Thriller. [Suddenly, the Turkish constitution passes out, clutching its chest! The patient's lawyer checks his speed dial and calls Ricochet--International First Responder! ... ]
So rush on over with the electric paddles, Ricochet, and let's see if some American constitutional wisdom can save the day.
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Jan '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Mert, you have wandered into a minefield with this one. This sounds like a classic Epstein v Yoo discussion (I personally side with Epstein). Good luck!
Aug '10
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
You came to just the right place, Mert. Presidential powers have been the subject of debate and strife since the beginning of our country. President Washington began his tenure by trying to involve Congress, according to a literal interpretation of the Constitution that stipulates they should "advise and consent" with him on important issues. Washington gave it up when time was wasted on trivialities, and both he and Jefferson expanded their powers beyond anything imagined by many of the Founders - including Jefferson himself, according to his own words pre-1800.
Presidential powers have changed dramatically over the decades. Jackson, Lincoln, T.R. Roosevelt, Wilson, and FDR expanded them further. Since the 1960's, the federal courts have expanded their power dramatically, and are threatening our freedoms across the board.
John Yoo has written an important book on this very subject, and I recommend it highly.
Edited on May 24, 2011 at 9:34amRe: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Mert, this is a fascinating question. I hope all of Ricochet will pitch in with their opinions: I always like showing off the widespread American enthusiasm for understanding and arguing about our Constitution. Pike, why do you side with Epstein? And would you mind giving a quick precis of the Epstein position for Mert in case he's not familiar with it?
May '10
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Mert, conservatives are particularly upset about how the meaning of "Interpretations" has been stretched over the last century. Famously (or infamously, if you're conservative), the Supreme Court found in Griswold vs. Connecticut a right to privacy based on "emanations" and "penumbras" in the Constitution.
If this sounds like the Justices were deciding fundamental aspects of U.S. law with a Ouija board, then you have a pretty good sense of the view of U.S. conservatives.
Feb '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
The President and members of Congress swear to uphold the Constitution. Few of them take this roll seriously.
Jan '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
I find Professor Epstein's libertarian views much more in accord with my own than those of Professor Yoo's. I've only read Professor Yoo's Crisis & Command and it left me with an "Imperial Presidency" feeling that I find repulsive (I would like to read more but my library only carries the one title). As for Professor Epstein's views you can do no better than to go to the source - here is a short PDF file on his views regarding just one aspect of presidential over-reach.
May '10
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
The president is limited greatly by the Constitution. He may not spend money that is not allocated by the House. He may not make appointments or enter into treaties without the advice and consent of the Senate.
However, presidents have pushed these limitations with executive orders and recess appointments. But that is neither the fault of the Constitution or the President. That is a problem of the Congress which refuses to exercise its power as a co-equal branch of government.
This seems to be because political leaders are happy to allow a president of their own party do things that they do not have the votes to accomplish Constitutionally. And they are reluctant to push it when their party is out of the White House lest they tie the hands of a future president they do like.
Feb '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Pike Bishop
I find Professor Epstein's libertarian views much more in accord with my own than those of Professor Yoo's. I've only read Professor Yoo's Crisis & Command and it left me with an "Imperial Presidency" feeling I find repulsive (I would like to read more but my library only carries the one title). As for Professor Epstein's views you can do no better than to go to the source - here is a short PDF file on hs views regarding just one aspect of presidential over-reach. · May 24 at 10:53am
Thanks for the pdf... I just red it and actually i feel like i am also in Epstein side of view... Also ill be reading http://review.law.umn.edu/wpcontent/uploads/2011/04/Levinson_Balkin_MLR.pdf
Constitutional Dictatorship, Its Dangers and Its Design from Sanford Levinson and Jack M. Balkin and see if it would make my point of view stronger...
I do believe that Constitution is not limiting the President. Of course i dont mean that there is no limitations at all. I.E. ¨advise and concent of Senate¨ etc Maybe thats why we are coming to negative government theory of Taft,
Feb '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
...... Maybe thats why we are coming to negative government theory of Taft and positive government from Roosevelt...
Probably another similar question would be: Are Presidents authorizations enumerated in Article 2 so that they are only allowed to do what in Constitution writes or Presidents can do whatever they want only if it is not restrained by the Constitutions. These two types of interpretations would make huge limit difference...
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Well, aside from my book, Crisis and Command, which I think I am still under contract to recommend to any and all, there are some excellent books on the powers of the President, both as a constitutional and political matter. The most well-known book, still the starting point for every Presidency 101 class in every college in America, is Richard Neustadt's Presidential Power. Another excellent book is Stephen Skowronek's The Politics that Presidents Make.
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
For insight into the Framers and the Presidency (an a great many other constitutional issues), there is still no better place to begin that Gordon Wood's The Creation of the American Republic. There is a deluge of articles and books on a variety of specialized issues involving the Presidency, many of which are cited in the endnotes to Crisis and Command, but I think it is always worth starting with the classics.The short answer to the question is that I think the Constitution restrains the President far more than the Supreme Court, because the Constitution creates a political system in which the Congress and President continue to struggle to lead using their constitutional powers and political capital. But a presidential system, particularly of the American variety, is the outlier -- most developed nations use the parliamentary system, which does not divide the executive and legislative branches as cleanly as does ours.
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Presidential power is of course central to the discussions of the American system. But there are many presidential systems which give the president rather different powers, and which operate along rather different lines. The superiority of the presidential system, or not, is highly contested, and difficult to judge because of the wide variations in how different systems. work. It is also worth noting that in many nations a high rate of constitutional turnover is the norm, and that turnover is driven by politics not by law. So there are presidential systems that become parliamentary, and vice versa.
John and I have had long standing disagreements on the extent to which the Constitution constrains the president. I think that those are quite large. I also think that the slippage in the system has been toward the president not a way from him, in part because the folks in Congress would rather not be heard on many key issues, where the political blowback is likely to be negative. I have not followed the Libya issue, but I wonder if the President has complied with all the provisions of the War Powers Act.
Mar '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
I am humbled by the presence of so many Constitutional scholars but, as an amateur, I would make two points:
1. Mr Obama does not believe in the US constitution - he messed up his oath of allegiance to it, in much the same way that he messed up his toast to the Queen (of the UK).
2. I have no idea about the Turkish Constitution, but doubt whether it has all the checks and balances of the US constitution (currently under attack - see point 1).
Oh, third point - arguably, the best years of Turkey were under Ataturk - I think any (Turkish) Presidential system, now, will be more, um, Islamist? This seems like a crucial difference, or am I wrong?
Edited on May 25, 2011 at 12:20amJan '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
We have to do what Claire commands, so here's my take.
Most of history, through the Greek philosophers, through the evolution of Europe, up until the late 18th century, took for granted that governance was natural. Every society needed a master. The authority of government was imposed from above, or just by the alignment of nature. As masters, government was responsible for addressing anything and everything that came along.
The American experience is different. Our country was founded by the belief that government is grounded in the consent of the governed. We created government as a free contract among citizens because we see it as a useful device, not as our natural master. Therefore, we hold that government is responsible only for what we expressly assign to it. It doesn't have open-ended authority; it can do only what the people expressly authorize it to do.
Our Constitution is designed so that the president only acts out of the specific authority we grant him. But, we have to deal with real life. Presidents can't wait for plebiscites on every issue. So, prudently, we've allowed a little wiggle room.
Ay, there's the rub.
(continued)
Jan '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
What happened when we gave presidents a little wiggle room? They took a lot of wiggle room. Give them an inch, they'll take a mile. That's understandable. People blame presidents for the state of the world, rightly or wrongly. It's understandable that a president would want some control over his own fate. And so, presidents have been pushing for more and more authority over more and more areas.
Traditionally, we left most of those areas to the rough and tumble of a free market, and the individual choices of states and citizens. We want to preserve that. So to prevent power from exploiting that wiggle room, the Founders decided to split power between (basically) two branches. Each would restrain the other. Each should define the other.
Other systems don’t make such a hard and fast split between the executive and legislature. We did. But that split is in danger, because in the power competition, the executive won. What happened? Congress caved. Politics became a competition between parties, not branches. Did I mention that Congress caved?
Balancing power between branches is a good idea, but it only works if each branch remains competitive. Congress caved.
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
David Williamson:
2. I have no idea about the Turkish Constitution, but doubt whether it has all the checks and balances of the US constitution (currently under attack - see point 1).
I'll defer to Mert completely in all discussion of Turkish constitutional law, but I'll quickly point out that Turkey has had four constitutions since the founding of the Republic. It's currently under the so-called 1982 coup constitution, ratified by referendum (with almost no public debate) during a period of military rule. So from a legitimacy point of view, there are more than a few problems with it. You can read it in English, here.
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Would you agree with Taft that this is owed to a defect in the language of the Constitution itself?
Oct '10
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Between Epstein and Yoo, you couldn't have wandered into a better barroom for this discussion. My only comment goes to your impression that the courts, more effectively than the Constitution, constrain the President. That judicial centric view of Constitutional parameters is a matter of considerable disgust among America's conservatives/libertarians. When I was in law school, I was still too interested Earthly pleasures to invest sufficient time in the study of Constitutional law. My sense was that the Supreme Court just made it all up. I still feel that way, but now have a better understanding of the political dynamics. No matter how brilliant your system of government, leaders will find a way to manipulate it to their advantage.
Jan '11
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
Claire Berlinski, Ed. Would you agree with Taft that this is owed to a defect in the language of the Constitution itself?
Yes. I believe that for as wonderful as it is, it is still a document written by human beings.
My own theory is that the executive section is so loose because it was written for a specific person: George Washington. Everyone knew that Washington was going to be the first president, and so they wrote Article II with him in mind. He was their model. The Founders may have wanted to establish a balance of power, but in their actual language, they were being solicitous of Washington. They just assumed that presidents would follow Washington, not only in office but in demeanor and sensibility. You didn't have to tell Washington how to be Washington: Washington would know.
Second, at the time of the writing of the Constitution, states were still dominant. The federal government was initially a pact between the states, chiefly to coordinate inter-state and "meta-state" affairs. Not only would Congress block an over-reaching president, but that the states would also.
They didn't anticipate needing Article II to be so specific.
Re: ConLaw 911: A Question from A Turkish Constitutional Law Scholar About the US Presidential System
KC Mulville
They didn't anticipate needing Article II to be so specific. · May 25 at 5:00am
Well, that brings up an interesting question: Do we need constitutional reform?