Pro Logica

February 17, 2010

Presidential Prerogatives

Filed under: U. S. Government — Tags: , , — Ron Toczek @ 4:33 am

The February 17 on-line edition of the Washington Post had a guest blogger, Clement Fatovic, who expounded on the concept of presidential prerogatives, gave examples and delved into the thinking of the founders. As interesting as the info was, he did not explain how congressional laws are written so as to give the president leeway in interpreting them nor how the founders have incorporated this concept into the US Constitution for directives not permitted by any specific law or constitutional provision.

For the first case, consider the Reagan directive banning grants to organizations promoting abortions and operating in a foreign country. This directive was rescinded by Clinton, reinstated by Bush and then rescinded by Obama again. What exists are congressional laws giving the president authority to support organizations providing health services in foreign countries without any provision about abortion: hence, by not saying anything about abortion, Congress has given the president unstated authority to implement the law according to his belief about abortion being a health service or not.

Lincoln would be the best example of the second case since he suspended the writ of habeas corpus and instituted a special tax to pay for the war, neither of these acts were constitutionally permitted.  So how was he  able to enforce these directives?

To answer the question we must look at what the Constitution does not say and also at what is does say.  The Constitution does not give any executive authority or legislative authority to the judicial branch; it also does not give any executive authority or judicial authority to the legislative branch except in the sole process of impeachment.  Since the judicial branch never decided a dispute invalidating these directives and since Congress never passed a law denying the president the authority to enforce these directives nor did Congress impeach the president for enforcing these directives, both of these branches tacitly okayed the directives as legitimate.  Since they were rescinded in short order, there was no need for any action by the other two branches.

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