Category: Presidency

Executive Discretion

Executive Discretion

I took a little hiatus from Cline on the Constitution to recharge the old batteries.  Lots happening at Supreme Court and elsewhere. Will try to catch my readers up over the next few weeks.


Executive Power


Out of the overheated debates on the situation at the border, lost among the shrieking and gnashing of teeth, is the question of the President’s responsibility for enforcing the laws of the United States.


There is little question that adults with children in tow have traveled from Central America across Mexico either with assistance of the Mexican government and the human trafficking cartels the leaders of Mexico allow to operate in their country. Arriving at the border, these people intentionally violated federal statues by illegally entering the United States.


Some claim they require asylum, some of the claims are legitimate, some fraudulent.  In order to properly evaluate asylum claims, federal law requires the persons making the claim to appear at designated Ports of Entry and not illegally sneak across the border attempting to avoid apprehension.


This administration recently announced a “Zero Tolerance” policy.  That is, they will arrest, detain, and prosecute the adults for violating the criminal statues of the United States without exception.  Because of federal laws, federal court decisions and consent decrees administered by the federal courts with the arrest of the lawbreakers, the separation of the adults from the children occurs. Some of the children belong to the adults.  Some don’t.


The President has demanded corrective legislation from Congress.  Members of Congress respond that he should simply order federal officers not to enforce the law.  The latter is consistent with past practice.  In the past the adults were released after solemnly, under oath promising to return for court proceedings. They of course lied.  After breaking the law and swearing to return, the vast majority absconded.


That sets the Constitutional issue.  May the President refuse to enforce the law?


Article 2, section 1, clause 1 of the Constitution vests all Executive Power in the President of the United States.  And Article 1, section 3, provides that the President shall, “take Care that the Laws be Faithfully executed.”  He is explicitly charged with the responsibility to “Faithfully Execute the Law.”


On the face of it there would be no choice.  The law is the law and the President is required to carry it out.  Right?  That would appear to be the meaning of “faithfully executed.”  However, it’s just not that simple.  The Supreme Court has long recognized that there is an element of discretion that is granted the Chief Executive.  It is the same discretion that is granted locally elected District Attorneys across the nation.  In fact, as applied to the Presidency the Court even used the term “Prosecutorial Discretion” interchangeably with “Executive Discretion.”


Having served over three decades as a prosecutor, two of those decades as the elected District Attorney, it’s a subject I know something about. When I teach about the subject I use the phrase “The Power of No.”


To appreciate the phrase a little history is useful.  The evolution of the “independent” prosecutor developed during the flowering of Jacksoninan Democracy. Andrew Jackson lead the movement of having local office holders freely elected instead of being appointed by Governors or legislatures. District Attorneys across the nation during his term started breaking away from being an arm of the judiciary until by the time of the Civil War, most were being independently elected. As that evolution occurred, one of most hotly debated issues was prosecutorial discretion, “The power to say No.”  That is, it didn’t matter who wanted a case filed, or prosecuted, the discretion of the local prosecutor meant they could refuse to proceed with the case and no one could make them do so.  The thoughtful legal scholars of the time thought that too much power.


Over the decades, the discretion to not proceed with a prosecution has been justified in numerous ways. As a means for saving resources, for being able to tailor justice in exceptional cases and other reasons.  And it continues to this day.  President Obama’s administration decided not to enforce the federal marijuana laws and refused to enforce the Defense of Marriage Act (DOMA) that defined marriage as being between one woman and one man for purposes of federal law. The present administration, like past administrations has indicated they may not spend the money allocated by Congress in the budget just passed, in effect impounding the funds.


On the other-hand some legal scholars have also argued that a President refusing to enforce the law is unconstitutional.  They point out that it constitutes an interference with Article 1’s delegation of all legislative power to the Congress.  If the President refuses to enforce the laws passed by Congress, does that not transfer the legislative power to the President, in effect giving him a super veto power over legislation that can’t be overridden by Congress?


In those situations where holder of the executive power refuses to enforce the law, what is the remedy? What can be done about it legally?


It’s not a “Congressional Oversight” question.  Congressmen like that term, but in reality, though they share some powers, they don’t have constitutional oversight of a co-equal branch of government.


The remedy usually recognized is a democratic one.   The elected executive/prosecutor can be replaced through the process of an election. If the voters don’t like that the laws are not being enforced, they can replace the official.  One could argue, I suppose, that that occurred when President Trump was elected ostensibly in part to enforce the immigration laws that had been benignly neglected by past Presidents.


What is clear, however, is that the Court would most probably recognize the President does have discretion not to enforce the laws requiring the arrest of individuals illegally entering our country.  He does have the power to say No.


Whether this would be heartwarming in the short term by reuniting the child with the adult or heartbreaking in the long term by encouraging endless lawlessness on our border, is a difficult question.  “Executive Discretion”, the power to decide when to go forward or when to say “No” is real power.  Knowing when and how to apply it is not that easy.


For more article and writing by Phil Cline, you are invited to visit




Presidential Wars

Presidential Wars

Presidential Wars


What we always considered a futuristic vision of a dystopian world in which a mad dictator hurls nuclear weapons toward our nation turns out not to be confined to the pages of apocalyptic science fiction.


Sorry, after I wrote the above paragraph I just liked it too much to hit the delete button.


Now, on to the Constitution!


In Syria, Afghanistan and Korea, there appears to be a new willingness by the President of the United States to take direct military action when he deems it necessary.


What is the constitutional authority for the President to exercise war powers?


The question, ironically, illustrates that some of the best known of our Constitution’s provisions may be the least understood.


Two are at work. Under the constitution, only Congress may declare war. The constitution also explicitly provides that the conduct of war resides with the President as the Commander in Chief of the Armed Forces.


People who study the constitution, its history and its theories endlessly debate the concepts of “checks and balances”, “separation of powers” and “shared powers”, but all the words get rather tedious and pale when as a nation we are faced with the prospect of actually going into a major war with a powerful foe.


Where exactly are the constitutional lines between the two branches of government (Congress and the President) as it relates to war?


First a distinction. There is a difference between “declaring” war and “engaging” in war. And the framers of the constitution recognized the difference. While they reposed in Congress the power to “declare” war, in other Article and clauses in the constitution, they used the phrase “engaging” in war. For example, the Constitution prohibits the individual States from “engaging” in war except in times of invasion.


Which begs the question: May the President “engage” in military action without the Congress having formally “declared” war?


As historians will report, Presidents have, on hundreds of occasions, beginning with President Jefferson, launched military adventures without a declaration of war from Congress. Historians, the few good ones anyway, will also point out that many of these were little more than actions against pirates on the high seas or bandits on the borders of the frontier.


However, it cannot be gainsaid that military incursions ordered by Presidents in recent times have been significant. Besides the Korean and Viet Nam wars, (Eisenhower, Kennedy, Johnson and Nixon) every President has ordered military action on their own executive authority, including but not limited to operations ordered by Presidents Ford (Viet Nam rescue operation) Carter (hostage rescue), Reagan (Grenada and Libya), Bush (Kuwait), Clinton (Kosovo), Bush (Iraq, Afghanistan), Obama (Libya). In none of those actions did Congress declare war. In fact, we have taken military action pursuant to a declaration of war by Congress only five times.


For most of the other military actions, however, there has been some sort of tacit or express approval by Congress short of a formal declaration of war. Two examples are the Tonkin Gulf Resolution during the Viet Nam war and the authority given to President Bush to respond to the 9/11 attacks.


So despite the seemingly express language of the Constitution, in practice it is unclear where the line of demarcation between the war powers of the President and Congress is drawn. Since it is Political Question, (In Constitutional Law this concept refers to issues reserved to the Political branches, the Presidency and the Congress) the courts have wisely stayed out of it. Until now they have mostly realized they have little competence to decide questions of war and peace.


Also worthy of discussion is The War Powers Resolution Act of 1973. Passed by Congress over President Nixon’s veto, largely in reaction to the Viet Nam war, it requires the President to seek approval of Congress before and after he commits troops to combat.


Starting with President Nixon, however, every subsequent President from both parties has declared that the act is unconstitutional as violating the Separation of Powers doctrine and have refused to follow it. They are supported by the opinions of most legal scholars though there are a few who disagree.


Finally, in times like these, an extra moment of reflection, and a second look at the Constitution and the intent of the framers should be considered before we go too far down the path to more war.


As I have outlined in previous posts, in times of War and other emergencies the powers of the President and Congress do expand. That expansion was contemplated and provided for by the Framers. But they also assumed an ending point.


Each week when I look on the faces of my students I can’t help but think they have never known a time when we were not at war. The prospects for the future are no different. The “Generation of Endless War.” And, further, does that mean the expansion of the powers of the Federal Government during times of war or emergencies becomes semi-permanent?


My hope is that their generation never forgets the Constitution. It’s the main reason I teach and the reason I engage in modest efforts like these posts to make the Constitution more accessible to anyone who chooses to read them.


As stated by Justice Sandra O’Connor in Hamdi v. Rumsfeld, “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad . . . ”




War and Emergency Powers

War and Emergency Powers

The prospect of war abroad and insurrection at home are not thoughts we welcome. However, I’m not sure they can much longer be avoided.


Abroad North Korea, ruled by a fat little despot with a bad haircut, has nuclear bombs, is developing missiles to deliver them and threatens to use the weapons against the United States and its allies.


In the Mid-East, Iran is also developing nuclear weapons and missiles and also repeatedly engages in provocations against United States forces in the region.


A miscalculation in either theatre could lead to a wider war.


At home, scenes from City streets like Saint Louis, Baltimore and Berkeley are cause for concern.   Police authorities, public institutions and even private homes of public officials are subjected to pre-planned violent attacks. The burning, looting and lawlessness resemble riots and insurrections more than protests.


It is worthwhile to pause a few moments and consider whether under the Constitution the powers of the Federal Government expand and individual rights shrink in time of war and insurrection?


It’s an important question because if there is a time when Constitutional restraints on the exercise of power by the Government are stretched to the outer limits it is in times of war. It is in times of national emergencies. Abraham Lincoln, like many of our leaders, had to ponder the ultimate question: “Is it possible to lose the nation,” he asked, “yet preserve the Constitution?”


The Framers of our Constitution were not fools. While they took pains to limit the powers of the federal government in order to avoid tyranny, they also knew there could be wars, rebellions, even insurrections and that if the government didn’t have the power to deal with such challenges, the country could be lost.


What are some of those powers?


Congress, as we know, has power to declare war by a simple majority vote of both houses. But what they also have the power to do is prepare the nation for war. They may pass Conscription laws, drafting private citizens to serve in the armed services. Congress may authorize the seizure of private property to aid in a war effort. And they may impose price controls as well as rationing of food, fuel and other materials.


Additionally, the Constitution guarantees the individual States a republican form of government and “protection against invasion.” And the Constitution empowers Congress to federalize militias and units of the National Guards to suppress insurrections that threaten republican forms of government and repel such invasions.


Congress also has the power under the Constitution to suspend the writ of Habeas Corpus in times of rebellion or invasion “or when the public safety requires it.” That has obvious implications for individual citizens detained by the government who wish to challenge the legality of their detention.


And While the Constitution has no express provision for the imposition of Marital Law, in fact it has been used numerous times in our history.


Additionally, by Executive order, the President may order the killing of American Citizens who wage war against the United States, both on foreign soil and actually within the jurisdictional borders of the United States. He may establish military tribunals to try and punish enemies of the United States. By Executive order and with the support of Congress, the President may establish internment camps for entire classes of citizens if it is deemed in the interest of National Security in times of war.


And lest there be any doubt about these powers, each of them has been used at some point in our history, and the Supreme Court has upheld the actions as Constitutional.


It is unknown if all those rulings would be the same to day, but if history teaches us anything it teaches us war is different, emergencies are different and what in peace time one believes would never happen can happen. And does happen.







Cline on the Constitution – Presidential Pardons

Cline on the Constitution – Presidential Pardons

Presidential Pardons


Last week, President Trump issued a pardon to the famous Sheriff Joe Arpaio of Maricopa County, Arizona. The Eighty Five year old Sheriff had been found guilty of Contempt for defying orders of a Federal Court. The orders had banned his staff from targeting individuals suspected of being illegal immigrants without legal cause.


The power of a President to issue Pardons derives from Article II of the Constitution which states: “The President . . . shall have Power to grant Reprieves and Pardons for offenses against the United States, except in cases of impeachment.”


The effect of a Pardon is that it totally erases both the conviction and the punishment. As has been stated by the Supreme Court, “(I)n the eyes of the law the offender is as innocent as if he had never committed the offense.”


A fully pardoned offender has all his rights restored. He can practice a profession. And he can run for office. Something Sheriff Joe has implied he just might do.


The concept of Executive Pardon came to us from England where the Crown had absolute power to issue Pardons and alter sentences.


As stated in the Constitution, it applies only to offenses against the United States. It does not apply to State Law. For example, a presidential pardon could not be issued for a murder conviction obtained in state court.


It is noteworthy, however, that Governors have similar powers and they use them in the same way. For example, Governor Schwarzenegger, on his last day in office, infamously commuted the sentence of the son of the Speaker of the Assembly, a political ally. The son had been convicted of being an accessory to murder.


Although, President Trump has been roundly criticized for issuing a Pardon to Sheriff Joe because he is a political ally, his actions are not without historical precedent.


In 1798 President John Adams, an ardent Federalist, used the Alien and Sedition Acts to persecute those who opposed Federalist policies. Many of those convicted were political allies of Thomas Jefferson, an Anti-Federalist. Jefferson went on to defeat Adams for re-election. The Sedition Acts were repealed and Jefferson pardoned all his political friends who had been convicted under the acts.


Modern examples include President Bush pardoning Scooter Libby for leaking a name of a CIA operative for political reasons. President Clinton pardoned his friend Susan McDougal who was convicted of contempt for refusing to testify concerning his involvement in a financial scandal. Famously President Ford pardoned his ally, President Richard Nixon, for any crimes he may have committed while in office.


In more general terms, Presidents have pardoned whole classes of individuals. Those Include deserters during the Civil War by President Lincoln; Ex-Confederates were pardoned by President Andrew Johnson; draft evaders during the Viet Nam war were pardoned by President Jimmy Carter and a legion of individuals convicted of drug crimes were pardoned by President Obama.


And of course, President Obama also issued the infamous pardon of Chelsea Manning, someone accused of committing treason against the United States.


Sheriff Joe’s toughness as a Sheriff made him famous. He once put all prisoners in pink underwear and housed convicts in a tent city in the intense Arizona heat. He was popular and routinely re-elected, despite his department’s spotty record of effectiveness in the investigation of major crimes in his county. Controversy dogged him for years and the voters eventually turned him out of office.


He was also a lighting rod for civil rights lawsuits and federal investigations for his policies regarding illegal immigration. Those policies led him to become one of President Trump’s earliest supporters. President Obama’s Justice department, however, continued to aggressively pursue Sheriff Joe. And he was eventually convicted. Then President Trump was elected and pardoned him.


Was the pardon controversial? You bet. Was the pardon within the President’s constitutional power to do so? Undoubtedly. Was the pardon of a political ally unprecedented? Well, . . . not really.




Presidential Rules for Military

Presidential Rules for Military

Recently, President Trump announced a policy to exclude Transgenders from the military. The President’s justification was the cost to the taxpayer of using funds budgeted for national defense to provide free sex change operations. He also emphasized the need to have the military focus their efforts on preparing for war rather than social engineering.

The policy change wasn’t exactly out of the blue.  In this year’s budget there were debates in Congress over amendments that sought to exclude funding for gender re-engineering for our soldiers.


There have been reports that because of budget shortfalls airmen have resorted to cannibalizing parts from decommissioned planes to keep others flying.  There have also been complaints that ever expanding requirements of sensitivity training on issues like sexual harassment was taking away from solider and pilot training in the basic disciplines of fighting and winning wars.  

The Presidential orders regarding trans genders are legal or their face.  Whether one believes the policy change was prudent, correct or moral, the justifications had a rational basis. It is also clear that a majority in Congress, including significant numbers of the Republican caucus, is not supportive of the change.  


Under the Constitution can Congress overturn a Presidential order related to the Military? Are the President’s powers as Commander in Chief all encompassing or does Congress have a role?

The framers of the Constitution were adamant that there be Civilian Control of the military, but the power itself was intentionally diluted under the Separation of Powers Doctrine. The president’s power over the military, as Commander in Chief, is not absolute.

Under Article I, Section 8, in addition to the Power to Declare War, Congress is granted the power to “make rules for the government and regulation of the land and naval forces.”  There is no doubt this would extend to the other branches of the military such as the Air Force, Marine Corp and even the contemplated Cyber Command. 

The Constitution also grants Congress extensive powers over calling up, organizing and governing Militias in times of invasion or insurrection.  Congress can also provide for preparing the country for war such as with conscription, the draft, and for the welfare of soldiers after returning from war such the G.I. Bill of Rights.  And, of course, Congress has the power of the purse. 

On the other hand Article II, section 2, states “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into service of the United States . . .” Again there is no doubt that it was contemplated that the President be Commander in Chief of the entire military not just the Army and Navy.

The President can be as involved or uninvolved in the day-to-day operations of the military as he chooses to be.  It is in his discretion.  And he has the power to issue regulations to implement his command.  Congress may call for war or call up the militias, but it is clear that when it comes to the conduct of military operations, it is the President who has the power under the Constitution. 

A close reading of the Constitution and commentaries accompanying the adoption of the Constitution makes it clear that if a situation deals with war making such as the conduct of military campaigns, the President is the chief General and Admiral, however, if it is not directly related to conducting war, such as governing the conduct of soldiers under the Uniform Code of Military Justice, the rules and regulations of Congress take precedence. 

If President Trump, in preparing for war with North Korea or China or Russia, has determined in his capacity as Commander in Chief, that transgender soldiers are not fit for duty, he is within his powers.  In matters of national defense, equality, fairness, the negative impacts of discrimination historically have taken a back seat to the ability of the military to defend the nation. Lincoln’s famous question of whether he can lose the nation and still save the constitution encapsulates the issue. 

That was not President’s Trump’s express reasoning, however.   More accurately, he determined that dealing with and paying for the issues Transgender soldiers engender negatively impacts military readiness.

For good or bad the Constitution vests that initial determination in the President.  At least in the absence of Congressional action. If Congress does act to overturn the policy, however, there could be a different result.

Lastly, is this a matter for the Courts? 

Traditionally, the courts have stayed out of Constitutional conflicts between the President and the Congress concerning War and the Military as long as the civilian population is not involved.  And certainly nowhere in the Constitution is it contemplated that civilian administration of Military extends to the courts. The courts have correctly understood they do not have the competence to make military determinations.  Whether that will hold given the activism of the current federal judiciary remains to be seen. 

Commerce Clause Part II, “The Switch in Time That Saved Nine”

Commerce Clause Part II, “The Switch in Time That Saved Nine”

Considering the arrogance and vitriol of rulings by the Federal Courts on President’s Trumps Travel Ban, one wonders if a major confrontation between the Executive Branch and the Federal Judiciary is brewing.

We have had such a confrontation before.

In 1935, Franklin Roosevelt had just been re-elected President by a landslide. His party dominated both houses of Congress, by large margins.

But he was worried.

He knew a reactionary Supreme Court was threatening to lay waste to programs he had, in his first term, steered through Congress to lift the nation out of the Great Depression.

He was right.

Over the next few months the Court found over a half dozen of Roosevelt’s programs unconstitutional. In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.” And it appeared his new Social Security and National Labor Relations Acts would suffer the same fate.

Roosevelt, however, had a plan. A Court Packing Plan. Within two months of the inauguration, he struck. In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy. The average age of the Justices was seventy-one. His plan would give him six new Supreme Court appointments and over forty new lower court Justices.

His proposal was and is constitutional. Nothing in the Constitution requires that the number of Justices be limited to nine. Nor does it specify any standards regarding qualifications. Only that the “judicial power of the United States be vested in One Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.”

Over the next 6 months there was a very public battle. Almost every editorial writer in the country opposed the proposal and of course the legal community rushed to protect the so-called the “independence” of the judiciary.

Nevertheless, most everyone on both sides of the debate assumed Roosevelt’s plan would pass. Then, unexpectedly two important New Deal programs were upheld by the Court. One concerned the minimum wage and the other the National Labor Relations Board. The Supreme Court and one justice in particular had switched how they were ruling on cases involving Roosevelt’s programs. After the rulings, Congress dropped The Court packing plan.

Revisionist historians, many from the legal profession, as is their métier, argue the change in rulings was not a result of Roosevelt’s court packing plan. Their explanations are facile. The results were clear. From that point forward, No other New deal program was ever overturned by the Supreme Court. As Roosevelt said, he may have lost the battle but he won the war. My favorite biography of FDR is aptly titled “The Lion and the Fox.” He was both.

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective.

The first is that regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency. They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done. And in this confrontation with the Executive Branch, they were going to ultimately lose. They switched their rulings to save their institution from change.

The second is not only did all of FDR’s New Deal Programs pass constitutional muster from that point forward, but for the next 60 years the Supreme Court never reversed one, not one, case involving an expansion of federal powers under the Commerce Clause. The result was the creation of vast administrative agencies and millions of pages of regulations that intrude on virtually every aspect of our daily lives.

We may be headed for a similar confrontation between the Executive Branch and the Federal Judiciary. Hopefully not, but if it happens, however it turns out, it can have extremely long term consequences for every one of us.