Supporting Question #1Historical Source A

The US Constitution

1. Best suggestion for the classroom: use the Constitution found in the textbook: Civics Today Citizenship, Economics and You by Richard C Remy et al, 2008, pp. 95-106. This is easier for students because the paragraphs are numbered for easier location of relevant material.

2. An online suggestion is the Annenburg Guide to the US Constitution, http://www.annenbergclassroom.org/page/a-guide-to-the-united-states-constitution.This source provides student friendly “What it Means” information for each Section within each Article. The paragraphs are not numbered.

3. For a printable version of a transcript of the original document, go to http://www.archives.gov/exhibits/charters/constitution_transcript.htmlAnd use the printer-friendly version. The paragraphs are not numbered.

SUGGESTIONS for more careful review:US Constitution - relevant sections/paragraphs, for example:For checks and balances:

A. Article I, Section 7, paragraphs 1-3B. Article I, Section 8, paragraphs 1, 11-16, 18C. Article II, Section 1, paragraph 2;D. Article II, Section 2, paragraph 1,2E. Article II, Section 4F. Article VG. Amendment 9H. Amendment 10I. Amendment 22J.

Powers of the Executive branch:A. US Constitution Article I Section 2 paragraph 5 and

Article I Section 3 paragraphs 6,7 (impeachment)B. US Constitution Article 1 Section 8 paragraphs 1 and 11 (Congress’ power to declare war, power of the purse)C. US Constitution Article II Section 2 paragraph 1 (Commander in Chief)

D. US Constitution Article II Section 2 paragraph 2 (Senate’s power to approve appointments and treaties)

SUPPORTING QUESTION 1 SOURCE A

E. Amendment 22

Supporting Question #1Historical Source B

US Constitution: Checks and Balanceshttp://www.usconstitution.net/consttop_cnb.html

U.S. Constitution

Source material for this topic page include the Constitution, Government by the People by James Burns, J.W. Peltason, and Thomas Cronin (Prentice-Hall, Englewood Cliffs, NJ, 1984), and Constitutional Law by Daniel Hall (Lawyers Cooperative Publishing, Albany, NY, 1997).

The American constitutional system includes a notion known as the Separation of Powers. In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about.

There are three branches in the United States government as established by the Constitution. First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last, the Judicial branch interprets the law. Each branch has an effect on the other.

Legislative Branch

Checks on the Executiveo Impeachment power (House)o Trial of impeachments (Senate)o Selection of the President (House) and Vice President (Senate) in the case of no

majority of electoral voteso May override Presidential vetoeso Senate approves departmental appointmentso Senate approves treaties and ambassadors

SUPPORTING QUESTION 1 SOURCE B

o Approval of replacement Vice Presidento Power to declare waro Power to enact taxes and allocate fundso President must, from time-to-time, deliver a State of the Union addresso

Checks on the Judiciaryo Senate approves federal judgeso Impeachment power (House)o Trial of impeachments (Senate)o Power to initiate constitutional amendmentso Power to set courts inferior to the Supreme Courto Power to set jurisdiction of courtso Power to alter the size of the Supreme Court

Checks on the Legislature - because it is bicameral, the Legislative branch has a degree of self-checking.

o Bills must be passed by both houses of Congresso House must originate revenue billso Neither house may adjourn for more than three days without the consent of the

other houseo All journals are to be published

Executive Branch

1. Checks on the Legislaturea. Veto power b. Vice President is President of the Senatec. Commander in chief of the militaryd. Recess appointmentse. Emergency calling into session of one or both houses of Congressf. May force adjournment when both houses cannot agree on

adjournmentg. Compensation cannot be diminished

2. Checks on the Judiciarya. Power to appoint judgesb. Pardon power

3. Checks on the Executivea. Vice President and Cabinet can vote that the President is unable

to discharge his duties

Judicial Branch

Checks on the Legislatureo Judicial reviewo Seats are held on good behavioro Compensation cannot be diminished

Checks on the Executiveo Judicial reviewo Chief Justice sits as President of the Senate during presidential impeachment

Reference

http://www.usconstitution.net/consttop_cnb.html

Supporting Question #1Historical Document C – Federalist #51 (excerpt)

Federalist Paper No. 51 (1787-1788)

The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

To the People of the State of New York:

[1] TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, … by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. …

[2] … it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. …

[3] It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. … But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

SUPPORTING QUESTION 1 SOURCE C

[4] A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. … In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. …

PUBLIUS

Referencehttp://www.ourdocuments.gov/doc.php?flash=true&doc=10&page=transcript

Supporting question #2Historical Source A – Federalist #68 (excerpts)

The Mode of Electing the PresidentFrom the New York PacketFriday, March 14, 1788.Author: Alexander Hamilton

To the People of the State of New York:

[1] THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded. [1] I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

[2] It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

SUPPORTING QUESTION 2 SOURCE A

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

[3] Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.

All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office.

[4] The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot

acquiesce in the political heresy of the poet who says: "For forms of government let fools contest That which is best administered is best," yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. …

PUBLIUS

Referencehttp://thomas.loc.gov/home/histdox/fed_68.html

Supporting Question 2Historical Source B – Washington’s Farewell Address (excerpts)

Transcript of President George Washington's Farewell Address (1796)

Friends and Fellow Citizens:

The period for a new election of a citizen to administer the executive government of the United States being not far distant, and the time actually arrived when your thoughts must be employed in designating the person who is to be clothed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed, to decline being considered among the number of those out of whom a choice is to be made.…

To the efficacy and permanency of your Union, a government for the whole is indispensable. No alliance, however strict, between the parts can be an adequate substitute; they must inevitably experience the infractions and interruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a constitution of government better calculated than your former for an intimate union, and for the efficacious management of [1] your common concerns. This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.

…

SUPPORTING QUESTION 2 SOURCE B

Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that for the [2] efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.

…

[3] It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which [4] the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

…

United States19th September, 1796

Geo. Washington

Referencehttp://www.ourdocuments.gov/doc.php?doc=15&page=transcript

Supporting Question #2 Historical Source C – overview of Madison v Marbury

SUPPORTING QUESTION 2 SOURCE C

Marbury v. Madison (1803) overviewOutgoing President John Adams had issued William Marbury a commission as justice of the peace, but the new Secretary of State, James Madison, refused to deliver it. Marbury then sued to obtain it. With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful. The document shown here bears the marks of the Capitol fire of 1898.

“A Law repugnant to the Constitution is void.” With these words written by Chief Justice Marshall, the Supreme Court for the first time declared unconstitutional a law passed by Congress and signed by the President. Nothing in the Constitution gave the Court this specific power. Marshall, however, believed that the Supreme Court should have a role equal to those of the other two branches of government.

When James Madison, Alexander Hamilton, and John Jay wrote a defense of the Constitution in The Federalist, they explained their judgment that a strong national government must have built-in restraints: “You must first enable government to control the governed; and in the next place oblige it to control itself.” The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch. The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review. Although no other law was declared unconstitutional until the Dred Scott decision of 1857, the role of the Supreme Court to invalidate Federal and state laws that are contrary to the Constitution has never been seriously challenged.

“The Constitution of the United States,” said Woodrow Wilson, “was not made to fit us like a strait jacket. In its elasticity lies its chief greatness.” The often-praised wisdom of the authors of the Constitution consisted largely of their restraint. They resisted the temptation to write too many specifics into the basic document. They contented themselves with establishing a framework of government that included safeguards against the abuse of power. When the Marshall decision Marbury v. Madison completed the system of checks and balances, the United States had a government in which laws could be enacted, interpreted and executed to meet challenging circumstances.

(The order bears the marks of the Capitol fire of 1898. )

Page URL:

http://www.ourdocuments.gov/doc.php?doc=19

(Information excerpted from Milestone Documents in the National Archives [Washington, DC: National Archives and Records Administration, 1995] pp. 23-24.)

U.S. National Archives & Records Administration700 Pennsylvania Avenue NW, Washington, DC 20408 • 1-86-NARA-NARA • 1-866-272-6272

Supporting Question #2Historical Source D – letter from Madison to Adams (excerpts)

James Madison to John Adams22 May 1817 Writings 8:390--92…

[1] It is remarkable that in each of our States …, assimilating their constitution to the examples of the other States, which had placed the powers of Government in different depositories, as means of controlling the impulse and sympathy of the passions, and affording to reason better opportunities of asserting its prerogatives.

[2] The great question now to be decided, and it is one in which humanity is more deeply interested than in any political experiment yet made, is, whether checks and balances sufficient for the purposes of order, justice, and the general good, may not be created by a proper division and distribution of power among different bodies, differently constituted, but all deriving their existence from the elective principle, and bound by a responsible tenure of their trusts. The experiment is favored by the extent of our Country, which prevents the contagion of evil passions; and by the combination of the federal with the local systems of Government, which multiplies the divisions of power, and the mutual checks by which it is to be kept within its proper limits and direction. In aid of these considerations much is to be hoped from the force of opinion and habit, as these ally themselves with our political institutions. …

The Founders' ConstitutionVolume 1, Chapter 10, Document 22http://press-pubs.uchicago.edu/founders/documents/v1ch10s22.htmlThe University of Chicago Press

The Writings of James Madison. Edited by Gaillard Hunt. 9 vols. New York: G. P. Putnam's Sons, 1900--1910. See also: Federalist

Referencehttp://press-pubs.uchicago.edu/founders/documents/v1ch10s22.html

SUPPORTING QUESTION 2 SOURCE F

SUPPORTING QUESTION 2 SOURCE D

SUPPORTING QUESTION 2 SOURCE E

Supporting Question #2Historical Source E – Ex parte Merryman (excerpts)

Ex parte Merryman, 1861

Decision by Roger Taney…excerpts

[1] The case, then, is simply this: A military officer residing in Pennsylvania issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night; he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement. And when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a Justice of the Supreme Court, in order that he may examine into the legality of the imprisonment, the answer of the officer is that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.…

[2] The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article.

This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department. It begins by providing “that all legislative powers therein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants, and legislative powers which it expressly prohibits, and, at the conclusion of this specification, a clause is inserted giving Congress “the power to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof.”…

[3] It is the second article of the Constitution that provides for the organization of the Executive Department, and enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizens now claimed was intended to be conferred on the President, it would undoubtedly be found in plain words in this article. But there is not a word in it that can furnish the slightest ground to justify the exercise of the power.

The article begins by declaring that the Executive power shall be vested in a President of the United States of America, to hold his office during the term of four years, and then proceeds to prescribe the mode of election, and to specify in precise and plain words the powers delegated to him and the duties imposed upon him. And the short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehensions of future danger which the framers of the Constitution felt in relation to that department of the Government, and how carefully they withheld

from it many of the powers belonging to the executive branch of the English Government which were considered as dangerous to the liberty of the subject, and conferred (as that in clear and specific terms) those powers only which were deemed essential to secure the successful operation of the Government.

He is elected, as I have already said, for the brief term of four years, and is made personally responsible, by impeachment, for malfeasance in office. He is, from necessity, and the nature of his duties, the Commander–in–Chief of the army and navy, and of the militia, when called into actual service. But no appropriation for the support of the army can be made by Congress for a longer term than two years, so that it is in the power of the succeeding House of Representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, the President used or designed to use it for improper purposes. And although the militia, when in actual service, are under his command, yet the appointment of the officers is reserved to the States, as a security against the use of the military power for purposes dangerous to the liberties of the people, or the rights of the States.

[4] So, too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of Government, nor make a treaty with a foreign nation or Indian tribe without the advice and consent of the Senate, and cannot appoint even inferior officers unless he is authorized by an act of Congress to do so. He is not empowered to arrest any one charged with an offence against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the Constitution expressly provides that no person “shall be deprived of life, liberty, or property without due process of law;” that is, judicial process. And even if the privilege of the writ of habeas corpus was suspended by act of Congress, and a party not subject to the rules and articles of war was afterwards arrested and imprisoned by regular judicial process, he could not be detained in prison or brought to trial before a military tribunal, for the article in the Amendments to the Constitution immediately following the one above referred to–that is, the sixth article–provides that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

[5] And the only power, therefore, which the President possesses, where the “life, liberty, or property” of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires “that he shall take care that the laws be faithfully executed.” He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution as they are expounded and adjudged by the coordinate branch of the Government to which that duty is assigned by the Constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the Executive arm. But in exercising this power, he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments.

With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen,

except in aid of the judicial power. He certainly does not faithfully execute the laws if he takes upon himself legislative power by suspending the writ of habeas corpus –and the judicial power, also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessities of government for [6] self-defense, in times of tumult and danger. The Government of the United States is one of delegated and limited powers. It derives it existence and authority altogether from the Constitution, and neither of its branches–executive, legislative or judicial–can exercise any of the powers of government beyond those specified and granted. For the tenth article of the amendments to the Constitution, in express terms, provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

Indeed, the security against imprisonment by Executive authority, provided for in the fifth article of the Amendments of the Constitution, which I have before quoted, is nothing more than a copy of a like provision in the English constitution, which had been firmly established before the Declaration of Independence.

Referencehttp://teachingamericanhistory.org/library/document/ex-parte-merryman/

SUPPORTING QUESTION 2 SOURCE FSupporting Question #2Historical Source F – War Powers Resolution (excerpts)

Overview

This guide is … an introduction … on the War Powers Resolution, Public Law 93-148, 87 Stat. 555, passed over President Nixon's veto on November 7, 1973. The War Powers Resolution is sometimes referred to as the War Powers Act, its title in the version passed by the Senate. This Joint Resolution is codified in the United States Code ("USC") in Title 50, Chapter 33, Sections 1541-48.

The term "Resolution" can be misleading; this law originated as a Joint Resolution and was passed by both Houses of Congress pursuant to the Legislative Process, and has the same legal effect as a Bill which has passed and become a law. For more information on Bills and Joint Resolutions see this explanation of Congressional Forms of Action.

The Constitution of the United States divides the war powers of the federal government between the Executive and Legislative branches: the President is the Commander in Chief of the armed forces (Article II, section 2), while Congress has the power to make declarations of war, and to raise and support the armed forces (Article I, section 8). Over time, questions arose as to the extent of the President's authority to deploy U.S. armed forces into hostile situations abroad without a declaration of war or some other form of Congressional approval. Congress passed the War Powers Resolution in the aftermath of the Vietnam War to address these concerns and provide a set of procedures for both the President and Congress to follow in situations where the introduction of U.S. forces abroad could lead to their involvement in armed conflict.

Conceptually, the War Powers Resolution can be broken down into several distinct parts. The first part states the policy behind the law, namely to "insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities," and that the President's powers as Commander in Chief are exercised only pursuant to a declaration of war, specific statutory authorization from Congress, or a national emergency created by an attack upon the United States (50 USC Sec. 1541).

The second part requires the President to consult with Congress before introducing U.S. armed forces into hostilities or situations where hostilities are imminent, and to continue such consultations as long as U.S. armed forces remain in such situations (50 USC Sec. 1542). The third part sets forth reporting requirements that the President must comply with any time he introduces U.S. armed forces into existing or imminent hostilities (50 USC Sec. 1543); section 1543(a)(1) is particularly significant because it can trigger a 60 day time limit on the use of U.S. forces under section 1544(b).

The fourth part of the law concerns Congressional actions and procedures. Of particular interest is Section 1544(b), which requires that U.S. forces be withdrawn from hostilities within 60 days of the time a report is submitted or is required to be submitted under Section 1543(a)(1), unless Congress acts to approve continued military action, or is physically unable to meet as a result of an armed attack upon the United States. Section 1544(c) requires the President to remove U.S. armed forces that are engaged in hostilities "without a declaration of war or specific statutory authorization" at any time if Congress so

directs by a Concurrent Resolution (50 USC 1544). Concurrent Resolutions are not laws and are not presented to the President for signature or veto; as a result the procedure contemplated under Section 1544(c) is known as a "legislative veto" and is constitutionally questionable in light of the decision of the United States Supreme Court in INS v. Chadha, 462 U.S. 919 (1983). Further sections set forth expedited Congressional procedures for considering proposed legislation to authorize the use of U.S. armed forces, as well as similar procedures regarding proposed legislation to withdraw U.S. forces under Section 1544(c) (50 U.S. 1545-46a).

The fifth part of the law sets forth certain definitions and rules to be used when interpreting the War Powers Resolution (50 USC 1547). Finally, the sixth part is a "separability provision" and states that if any part of the law is held (by a court) to be invalid, on its face or as applied to a particular situation, the rest of the law shall not be considered invalid, nor shall its applicability to other situations be affected (50 USC 1548).

U.S. Presidents have consistently taken the position that the War Powers Resolution is an unconstitutional infringement upon the power of the executive branch. As a result, the Resolution has been the subject of controversy since its enactment, and is a recurring issue due to the ongoing worldwide commitment of U.S. armed forces.

Referencehttp://www.loc.gov/law/help/war-powers.php

WAR POWERS RESOLUTION 1973 (excerpts)PURPOSE AND POLICY

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations. SEC. 2. (b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

SEC. 2. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

CONSULTATIONSEC. 3.

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

REPORTINGSec. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced-- …Sec. 4. (b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad. Sec. 4. (c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

CONGRESSIONAL ACTION…SEC. 5. (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. …INTERPRETATION OF JOINT RESOLUTIONSEC. 8. (d) Nothing in this joint resolution-- (1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.

Referencehttp://www.thecre.com/fedlaw/legal22/warpow.htm

Supporting Question #3Historical Source A - Quotes

1. As John Adams wrote to Benjamin Rush in 1790:

No nation under Heaven ever was, now is, nor ever will be qualified for a Republican Government, unless you mean ... resulting from a Balance of three powers, the Monarchical, Aristocratical, and Democratical ... Americans are particularly unfit for any Republic but the Aristo-Democratical Monarchy.- See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

2. Hamilton wrote in his notes in 1787 that republics suffered from corruption and intrigue, while monarchical power provided vigorous execution of the laws and acted as a check on the other branches of government.

The monarch must have proportional strength. He ought to be hereditary, and to have so much power, that it will not be his interest to risk much to acquire more.- See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

3. Adams wrote to Jefferson in December 1787 on the new Constitution, observing that ‘you are apprehensive of Monarchy; I, of Aristocracy. I would therefore have given more Power to the President and less to the Senate’. - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

4. It is one of the great ironies of the US constitution that the Founding Fathers invested more power in the presidency than George III exercised as King. - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

5. Washington himself was said to have preferred the style of ‘High Mightiness’ used by the Stadtholder of the Netherlands. The reigning Stadtholder, William V, was among the Europeans who saw George Washington as an un-crowned monarch. As he said to Adams: ‘Sir, you have given yourselves a king under the title of president’. - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

SUPPORTING QUESTION 3 SOURCE A

6. The African-born Phillis Wheatley paid poetic tribute, which suggested just how common it was at the time to think of the presidency as a variant of kingship:

A crown, a mansion, and a throne that shine/With gold unfading, Washington! Be thine.- See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

7. Patrick Henry, another Virginian, famously denounced the Constitution’s ‘deformities’ and saw the presidency ‘squinting’ towards monarchy:

If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute. The army is in his hands, and if he be a man of address, it will be attached to him ... Away with your president! We shall have a king: the army will salute him monarch. - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

8. In 1787, Franklin, with philosophical detachment, observed in the Constitutional Convention:

It will be said that we do not propose to establish kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

9. Dignity and grandeur, thought essential to the union and the nation’s highest office, were the order of the day. In a pale imitation of George III’s golden state coach pulled by eight cream Hanoverian stallions, David McCullough describes how:

Washington rode to Federal Hall in a canary-yellow carriage pulled by six white horses and followed by a long column of New York militia in full dress.

Back at the Senate, the President called his address ‘His Most gracious Speech’, which raised a few eyebrows, for it was noted that those words were the same as those placed before the speech of the King at the annual opening of Parliament. When a critic protested that the usage represented ‘the first Step of the Ladder in the Ascent to royalty’, the President greeted the complaint with surprise, saying that it was ‘taken from the Practice of that Government under which we had lived so long and so happily formerly’. - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

10. John Adams, dubbed ‘His Rotundity’ and the ‘Duke of Braintree’, was often criticised for his princely style. His love of decorum led his enemies to conclude ‘that he sought a hereditary monarch, with himself as king and son John Quincy groomed as his dauphin’ (Ron Chernow, Alexander Hamilton, 2004). - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

11. Even Jefferson, the scourge of American royalists, felt that the spirit, if not the letter of monarchy, had persisted. He feared an eventual tyranny of executive power in Washington, which he believed to be a feature of Federalist politics. As he wrote to James Madison in 1789: ‘We were educated in royalism; no wonder, if some of us retain that idolatry still’. - See more at: http://www.historytoday.com/frank-prochaska/american-monarchy#sthash.od6GBQMS.dpuf

Referencehttp://www.historytoday.com/frank-prochaska/american-monarchy

Supporting Question #3Historical Source B – Antifederalist Patrick Henry

Antifederalist Quotes from Patrick Henry

“If your American Chief (President) be a man of ambition and abilities, how easy is it for him to render himself absolute: The army is in his hands, and if he be a man of address, it will be attached to him; and it will be the subject of long mediation with him to seize the first auspicious moment to accomplish his design; and, Sir, will the American spirit solely relieve you when this happens? I would rather infinitely, and I am sure most of this Convention are of the same opinion, have a King, Lords, and Commons, than a Government so replete with such insupportable evils.”

  Reference

http://www.andycrown.net/antifederalists.htm

SUPPORTING QUESTION 3 SOURCE B

Supporting question #3Historical Source C – Federalist #70 (excerpts)

Federalist No. 70

The Executive Department Further ConsideredFrom the New York PacketTuesday, March 18, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the [1] condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.

There can be no need, however, to multiply arguments or examples on this head. A feeble [2] Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.

[3] Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.

The ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility.

Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous

SUPPORTING QUESTION 3 SOURCE C

legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.

[4] ... In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality.

… the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution.

PUBLIUS.

Referencehttp://thomas.loc.gov/home/histdox/fed_70-2.html

SUPPORTING QUESTION 4 SOURCE A

Supporting Question #3Historical Source D

A Current Example – Overview and two opposing viewpoints

Overview

Is President Obama Abusing Executive Power?The House last week adopted a bill that, as the Associated Press put it, "would expedite congressional lawsuits against the chief executive for failure to enforce federal laws." The measure was approved by a vote of 233 to 181, with every voting Republican, as well as five Democrats, voting in favor.

The bill was spurred by what Republicans see as an abuse of executive power by the Obama administration. They cite executive changes to the Affordable Care Act, known as Obamacare, as well as executive orders regarding immigration and the environment. Republicans are also displeased with the administration for failing to fully enforce federal laws on sentencing and the federal ban on gay marriage.

“The Constitution gives Congress the responsibility to write the laws and the executive to enforce them," said Rep. Trey Gowdy, R-S.C., the bill's sponsor. "We don’t pass suggestions. We don’t pass ideas. We pass laws." House Majority Leader Eric Cantor, R-Va., added: "The president's dangerous search for expanded powers appears to be endless."

President Obama, in his most recent State of the Union address, explicitly said that he would respond to Congressional obstruction by finding measures that could be implemented in the absence of congressional action. "America does not stand still – and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do," Obama said. Congressional Democrats have defended the president's approach, saying that Republicans want a "do-nothing president," in addition to a "do-nothing Congress." Sen. Majority Leader Harry Reid, D-Nev., said that the House bill is "dead on arrival" in the Democratically controlled Senate.

Scholars, meanwhile, have split on whether the president is overreaching in terms of executive authority."Obama’s assertion of unilateral executive authority is just routine stuff. He follows in the footsteps of his predecessors on a path set out by Congress. And well should he. If you want a functioning government — one that protects citizens from criminals, terrorists, the climatic effects of greenhouse gas emissions, poor health, financial manias, and the like — then you want a government led by the president," wrote University of Chicago Law School Professor Eric Posner. But Michael McConnell, a former federal judge who is now a professor of law and director of the Constitutional Law Center at Stanford Law School disagrees, writing, "While the president does have substantial discretion about how to enforce a law, he has no discretion about   whether   to do so . ... Of

all the stretches of executive power Americans have seen in the past few years, the president's unilateral suspension of statutes may have the most disturbing long-term effects."

First Viewpoint: Limited Executive Power

Obama's Power Grabs Set a Dangerous PrecedentBy Roger Wicker March 21, 2014 | 3:00 p.m. EDT

https://twitter.com/share?url=http%3A%2F%2Ft.usnews.com %2FZjury&src=usn_tw&via=usnews&text=Obama%27s%20Power%20Grabs%20Set%20a%20Dangerous%20PrecedentPresident Obama’s habit of repeatedly sidestepping Congress has made a mockery of the Constitution. Not only has he defied the law to advance an ultra-liberal agenda, but his power grabs also set a dangerous precedent for future administrations.

America’s founding document is clear in its designation of powers to Congress and the President. “All legislative powers” go to the legislative branch, while the responsibility of seeing “that the Laws be faithfully executed” belongs to the executive.  These decrees are essential to the separation of powers enshrined in the Constitution.

Our Founding Fathers knew the danger of an imperial presidency and established a system of divided and limited power to protect against it. Sadly, President Obama continues to undermine this important balance through a flagrant use of administrative fiats.

Perhaps nowhere is the president’s overreach more evident than his unaffordable, unworkable and unpopular health-care law. Instead of working with Congress to fix the law’s many flaws, Obama has consistently proceeded to rewrite legislation while at the same defending it as “the law of the land.” For example, he has delayed the law’s key provision requiring employers with at least 50 full-time employees to offer health insurance. Similarly egregious is his political postponement of the law’s core individual mandate provision.

The administration’s constitutional runaround is particularly inexcusable given the bipartisan willingness in Congress to address the health care law’s shortcomings. But in response to congressional efforts to delay or modify the law, the president issues veto threats and then follows them with his own unilateral edicts.

Alarmingly, the Obama Administration’s abuse of power extends far beyond the health-care law. He has also made illegal “recess” appointments without the “advice and consent” of the Senate. These excessive orders and waivers are not isolated incidents but part of a troubling pattern. Time and again, President Obama has defied the limits of his office by ignoring the Constitution when it is convenient.

The president needs to be held accountable for actions that violate his executive power. In an effort to defend the Constitution’s separation of powers, Congress has offered a potential response to curb this abuse with the Enforce the Law Act. This legislation would allow Congress to adopt a resolution authorizing a lawsuit against the executive branch if the president refrains from enforcing any provision of federal law. Essentially, it would help ensure that the President is fulfilling his constitutional obligation to see that the law is faithfully executed.

A functioning democracy requires all three branches of the government to recognize and respect the parameters of power that the Framers envisioned. Likewise, preserving the integrity of the Constitution requires dutiful vigilance by those who have sworn an oath to protect it. The Enforce the Law Act is one solution, but what the American people really need is a president who understands the Constitution and the essential limits on presidential power. As James Madison wrote in essay No. 48 of "The Federalist Papers," “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

About Roger Wicker is the junior Republican senator from Mississippi.

Second Viewpoint: Strong Executive Power

The Framers Wanted a Strong PresidentBy Brianne Gorod March 21, 2014 | 3:00 p.m. EDT

Alexander Hamilton wrote, “all men of sense will agree in the necessity of an energetic Executive.” That statement tells us what Hamilton would have thought of House Republicans, who last week passed the Enforce the Law Act, legislation directed at President Obama for, in the words of the House Report on the bill, “stretch[ing] his powers beyond their constitutional limits.”

House Republicans are wrong on two counts.  First, President Obama has hardly been failing to “[e]nforce the [l]aw." For example, in the immigration context, the administration has been deporting people at record levels, prompting some Latino leaders to call Obama the “deporter-in-chief.”  Second, Obama does not need to “stretch[] his powers beyond their constitutional limits” to make good on his State of the Union promise to make 2014 a “year of action.” After all, our Founding Fathers wanted a strong leader for the nation.

Indeed, although House Republicans claim the Framers had a “deep-seated fear of the abuse of executive power,” what they also feared was a president who was so weak that he could not enforce the nation’s laws.

Before there was the Constitution, there was the Articles of Confederation. The Articles of Confederation lasted less than a decade, in large part because the government it established lacked an executive branch. When the Framers convened in Philadelphia to draft a new national charter, they sought to remedy this deficiency by creating a strong executive branch headed by a single person. The new Constitution gave the president a number of powers and duties, among them the obligation to “take Care that the Laws be faithfully executed.” Because the Framers understood that the execution of the law — unlike its enactment — would be an ongoing process, they required the president to always be in service, unlike the Congress which needed to meet only once every year.

One respect in which the president “faithfully execute[s]” the laws is by deciding what the laws mean and how they can best be enforced. When Congress enacts a law, there will often be ambiguities and gaps, and courts will generally defer to the executive branch’s understanding of how to resolve those ambiguities and fill those gaps. Moreover, because it would be impossible for every violation of the law to be prosecuted, the executive branch must exercise judgment in determining how to “faithfully execute” the law. As then-Justice William Rehnquist wrote for the Supreme Court nearly thirty years ago, an “agency’s decision not to prosecute or enforce [a law] . . . is a decision generally committed to an agency’s absolute discretion.” Of course, there are limits to that discretion, but House Republicans are wrong to suggest that the president is engaging in “executive overreach” by deciding, for example, how best to enforce the nation’s drug and immigration laws.

The Framers might not have been able to foresee the precise problems that confront the country today. But they foresaw that the president might sometimes need to take unilateral action to address them. House Republicans act as if every use of Obama’s executive power is an abuse of that power. It is not. We can only hope that sense will once again prevail in Washington, and House Republicans will not be allowed to deprive the country of the “energetic Executive” the Framers wanted. 

About Brianne Gorod is appellate counsel at the Constitutional Accountability Center.

Reference

http://www.usnews.com/debate-club/is-president-obama-abusing-executive-power

POLITICAL CARTOON, “THE KING CAN DO NO WRONG” Document Note: The 1st image references FDR “cancelling” the Constitution is likely referring to his attempt to pack the Supreme Court. The 2nd image depicts President Andrew Jackson who was credited with starting the spoils system. Think about what this cartoon is saying about his presidential power and what are the details in the cartoon that contribute to your interpretation. The 3rd image shows a weaker Congress being controlled by the very powerful President Richard Nixon.

SUPPORTING QUESTION 4 SOURCE B

EISENHOWER AS A LAME DUCK / LAME DUCK CARTOONDocument Note: The term “lame duck” is used to describe a politician that is nearing the end of their term of office and is either not eligible for or not seeking re-election. Some believe that politicians in this situation have little power or influence over policy during this period.

SUPPORTING QUESTION 4 SOURCE C

“Pessimists had predicted that Eisenhower would be a seriously crippled “lame duck” during his second term, owing to the barrier against reelection erected by the Twenty-second Amendment, ratified in 1951. In truth, he displayed more vigor, more political know how, and more aggressive leadership during his last two years as president than ever before. For an unprecedented six years, from 1955- 1961, Congress remained in Democratic hands, yet Eisenhower exerted unusual control over the legislative branch. He wielded the veto 169 times, and only twice was his nay overridden by the required two-third vote.”

Source: The American Pageant, Thirteenth Edition, pg 904.

Source: Artist, Mike Luckovich

The Case for a Strong President

The growth of the president's power is necessary. presidents should be strong and powerful.

SUPPORTING QUESTION 4 SOURCE D

The U.S. today needs a strong president. Who else can give the nation leadership? Who else can make the quick decisions that are needed in a national emergency?In the old days, an army could move only as fast as its horses and sailing ships. There was plenty of time for Congress to debate issues of war and peace. But not today. Only the president can act fast enough in an emergency.Furthermore, only the president can give real leadership on the many national problems. Congress cannot lead as well as the president simply because there is only one president, but there are 435 Representatives and 100 Senators. Members of Congress seldom agree on what to do.Unlike members of Congress, the president is elected by all the voters. The president does not represent just one part but the whole of the country. And if the people think that the president has taken too much power, they can always elect someone else every four years.So run the arguments of those who believe in the need for a strong president.

The Case Against a Strong President

We often treat our presidents as if they were royalty. presidents live in a big mansion. They have servants and assistants whose only job is to make sure the president has everything he or she wants.They don't get much personal contact with the American people because the Secret Service fears they may be attacked. As one critic says: "No one speaks to him unless spoken to first. No one ever tells him to go soak his head when his demands become unreasonable."The president has taken more and more power at the expense of Congress. The people who wrote the Constitution believed in checking and balancing power between Congress and the president. But today, the president is more powerful than Congress.One example of what has happened is in the power to declare war. The Constitution clearly gives that power to Congress only. Yet recent presidents have been able to fight wars without a formal declaration of war by Congress.Take, for example, Vietnam. Though the president never asked Congress for a declaration of war against anyone in Southeast Asia, Congress allowed the president to conduct a war there.Congress passed a resolution allowing the president "to take all necessary measures to ... prevent aggression [in Vietnam]." Then, over the course of the years, it consistently gave the president the money that he said he needed to do so. It may be said that by doing this Congress willingly gave up its exclusive power to declare war.So run the arguments of those who are against the idea of a strong president.

Adapted from The Presidency, Congress, and the Supreme Court, Scholastic Inc., 1989

Thomas Jefferson and the Louisiana Purchase

SUPPORTING QUESTION 4 SOURCE E

 “the less we say about the constitutional difficulties respecting Louisiana, the better, and what is necessary for surmounting them must be done sub silentio.”

Source- Thomas Jefferson in a letter to James Madison

Abraham Lincoln and Habeas Corpus

The doctrine of habeas corpus is the right of any person under arrest to appear in person before the court, to ensure that they have not been falsely accused. The US Constitution specifically protects this right in Article I, Section 9: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Lincoln initially suspended habeas corpus in the volatile border state of Maryland in 1861 in order to try large numbers of civilian rioters in military courts and to prevent the movement of Confederate troops on Washington. The order was eventually extended in response to different threats. In the summer of 1862, President Lincoln had called up the state militias, leading to increased opposition to the Civil War within the Union. By General Orders No. 141, September 25, 1862, Lincoln subjected protestors to martial law and the suspension of habeas corpus.

The suspension of habeas corpus was one of Lincoln’s most controversial decisions. In the spring of 1863, General Ambrose Burnside arrested Peace Democrat Clement Vallandigham, who had been critical of the US government, and banned publication of the Chicago Times, which was supportive of Vallandigham. Burnside’s actions drew widespread criticism, to which Lincoln responded by reducing Vallandigham’s sentence and revoking Burnside’s order suppressing the Times. Lincoln defended himself against charges that his administration had subverted the Constitution, however, arguing that acts that might be illegal in peace time might be necessary “in cases of rebellion,” when the nation’s survival was at stake.

Source- A proclamation on the suspension of habeas corpus, 1862https://www.gilderlehrman.org/history-by-era/american-civil-war/resources/proclamation-suspension-habeas-corpus-1862

Complete, using the documents suggested. Name (s)________________(For 1-4, include the US Constitution Article and Section.) ____________________________

1. Legislative power to check/balance the Executive branch1. (Article ___, Section___)2. (Article ___, Section___)3. (Article ___, Section___)

2. Executive branch power to check/balance the Legislative branch1. (Article ___, Section___)2. (Article ___, Section___)3. (Article ___, Section___)

3. Executive branch power to check/balance the Judicial branch1. (Article ___, Section___)2. (Article ___, Section___)3. (Article ___, Section___)

4. Judicial branch power to check/balance the Executive branch1. (Article ___, Section___)2. (Article ___, Section___)3. (Article ___, Section___)

5. Using primarily the marked (#1,2,3,4 and bolded) excerpts, what is the main idea of Federalist #51?

6. How much power is given to the Executive by the Founding Documents?

APPENDIX FOR SUPPORTING QUESTION 1 Worksheet A

Complete the information in the chart. Name (s)________________________________

Reading How Executive is limited? Is this limitation a good things or a bad thing?

A. Federalist #68 (the Electoral College)

B. George Washington’s Farewell Address

C. Marbury v Madison overview

D. Letter, Madison to Adams

E. Ex Parte Merryman (suspension of habeas corpus)

F. War Powers Resolution

Final conclusion: Provide at least 3 reasons limiting presidential power is good or bad.1.2.3.

APPENDIX FOR SUPPORTING QUESTION 2 Worksheet B

Complete the information in the chart. Name (s)________________________________

Reading How Executive is expanded? Is this Expansion a good things or a bad thing?

A. quotes from the Founding Fathers

A. quotes from the Founding Fathers

A. quotes from the Founding Fathers

A. quotes from the Founding Fathers

B. Patrick Henry

C. Federalist #70

Final conclusion: Provide at least 3 reasons presidential expansion is good or bad.1.2.3.

APPENDIX FOR SUPPORTING QUESTION 3 Worksheet C

Positive Historical ExamplesOf Presidential power increasing

Negative Historical Examples of Presidential power increasing

SUPPORTING QUESTION 4 Worksheet D

Debate

Find one article that can give you evidence to argue that the increase of presidential power has been good and one article that can give you evidence to argue that the increase of presidential power has been bad.

You do not have to compare every document to the articles you find on the topic. Although, I do want you to compare at least one or two document from each supporting question to the ones you find. Other than that the write up will be the same as usual and be prepared to debate it in class.

APPENDIX FOR SUMMATIVE PERFORMANCE TASK