Representation (a Political Issue)
In section 1 of Article II of the United States Constitution, it states that executive power shall be vested in a President of the United States of America. Section 1 then goes on to lay out the rules for electing a President and Vice President. Section 2 lays out the powers of the President. Section 3 lays out the requirement for the President to provide Congress with information about the State of the Union and to perform some other duties. Section 4 states that members of the executive branch can be removed from office through impeachment.
Two of the clauses in section 1 that deal with electing the President and what happens with Presidential disability and succession have been superseded by the 12th and 25th amendments. The 20th amendment sets the Presidential inauguration date to January 20th. The 22nd amendment was added to limit the President to just 2 terms in office. The 23rd amendment grants Washington D.C. electors in the Electoral College.
Based on what is in the Constitution, the powers of the President and Vice President are a bit of a mixed bag. In some ways it looks like the President should have tremendous power, but in other ways it looks like the President should have more of a ceremonial role with the real power being vested in the Congress. Except for being President of the Senate and getting to cast the deciding vote when there is a tie, it does not look like the Vice President was given much of a role.
Throughout the history of our nation and especially recently, the President has been given or has grabbed more power. The President now seems to wield more power over more things than ever before. At times, wielding this power more like a dictator or king than a President and even doing so to the point where many things may be illegal or unconstitutional. The main problem comes from the over politization of the Legislative and Judicial branches to the point where they no longer serve to put the needed checks and balances on the overly politicized Executive branch.
In the following subsections, I will discuss some issues with electing our President and Vice President and with how they are wielding their power. I will also suggest some changes that should help us elect better Presidents and Vice Presidents and that should help us rein in some of their excess power.
The Constitution sets forth a unique method of electing our President and Vice President. It states that each state shall appoint electors in the manor their legislature has set forth. The number of electors would be equal to the number of United States Senators and Representatives that the state has.
Prior to the 12th Amendment, the Constitution expected the state’s electors to select two candidates for office with no distinction between who would become President and Vice President. Plus, one of the two had to be from a different state than the electors. When all the votes from the electors were counted, the candidate with most of the votes would become President and the candidate with the second highest number of votes would become Vice President.
When the Constitution was first written, it was assumed that all the candidates would run to become President and the runner up would settle for being Vice President. The original idea was to elect the most qualified candidate to be President and then to make the next most qualified candidate Vice President. Initially, this worked out well, since there were no political parties to influence how the electors voted.
However, this changed after people started to form political parties despite our founding fathers’ warnings against them. In the election of 1796, the candidates of the political parties ran as running mates. Although these candidates may have thought of themselves as running mates and one maybe expecting to be President and the other Vice President, the electors would still vote for two candidates to become President. Which meant the was no guarantee as to which candidate might be elected President.
Due to the influence of the political parties and the way the electoral voting worked, the election of 1800 did not work out very well. First, there was a tie in the number of the most votes by the electoral college, which trough the election to the House of Representatives. Then, with the House of Representatives evenly split between the Federalist Party and the Democratic-Republican Party, there was gridlock with 35 tie votes before a breakthrough was finally made and a President was elected.
With the realization that political parties seemed to be here to stay and that that could continue to cause problems with the presidential elections, the 12th Amendment was ratified in 1804 to prevent future problems. With this change, the electors would then each cast one ballot for President and a separate ballot for Vice President. They would then make two distinct lists. One list would have the names and votes for President. The other list would have the names and votes for Vice President. They would then sign and certify the lists and transmit them sealed to the President of the Senate.
The changes made by the 12th Amendment, political parties could then put forward a ticket with a Presidential and Vice-Presidential pair without any issue of the electors treating them both as Presidential candidates. Today, we need to vote for a slate of electors who have promised to vote for a specific Presidential and Vice-Presidential pair who both belong to the same political party.
There are a few problems with the way this process currently works. The problems start with the whole concept of having an Electoral College with its preference for the smaller states, the winner take all voting for electors that most states now have, and the way the President and Vice President are linked together.
First, the idea behind having the Electoral College was the result of a compromise. For one thing, our founding fathers did not want the smaller states to be overshadowed as much by the larger states. In addition, they thought that the appointed electors would be more knowledgeable than what they called an uninformed public and so would elect a President and Vice President who would less likely be demagogues or only have regional appeal.
In our early republic the difference in the sizes of our states was not as big as we have today. Therefore, their size differences were initially not much of an issue. Today, the difference in states’ sizes is much bigger and give our smaller states an outsized advantage in the election of our President and Vice President. Although these size differences do not give our smaller states as big an outsized advantage as they do with our Senate.
For instance, based on their relative populations, the voters in Wyoming have 65 times the clout in the Senate than the voters in California. Even with electors equaling the total number of Senators and Representatives, so that Wyoming has 3 electors and California has 54 electors, each voter in Wyoming still has about 4 times the say in who is elected President and Vice President than each voter in California.
Today, the Electoral College no longer provides protection from an uninformed public that our founding fathers had wanted. First, we now vote for our electors instead of them being appointed. Second, our political parties now select a Presidential candidate who then picks a running mate to be Vice President so we can only vote for the pair even if we do not think one of them is qualified. Third, in most states, we now have a winner take all approach in our elections for electors so winning by just a few votes in a state is just as good as winning by a landslide and the electors will then usually still all need to vote for the same pair of candidates.
I have already talked about how we could partially improve this situation in earlier chapters and sections. This includes becoming better informed about the issues and learning how we can better protect ourselves from being manipulated by the candidates. This would also include eliminating the political parties and creating a better electoral process with open primaries and Head-To-Head Matchup Voting so that we can get better candidates and elect better representatives.
However, to make things even better, we also need to eliminate the Electoral College and to elect our President and our Vice President directly and separately rather than as a pair. Then, all votes would be counted equally across the country so we would each have an equal vote. Since none of the states would have an outsized advantage in electing our President and our Vice President, candidates would have as much incentive to campaign and to be responsive to voters everywhere instead of just in a few swing states.
We would also change the primary schedule either to rotate which states go first or to have them all on the same date. This will prevent certain states from always having extra influence to help or to hurt the chances of certain candidates. If we rotated the primary schedule for each election, then we should group the states by region so that any extra influence would be switched to a different region each time. If we had all the primaries on the same date, then none of the results in one state could be used to influence the votes cast in other states.
In addition, there is one more change that could make things even better. Instead of voting for a President and voting for a Vice President, we could just have an election for President where the winner would become President, and the runner up would become Vice President just as our founding fathers had envisioned. We would do this to avoid the problem where only some less qualified candidates might be willing to run for Vice President. Where appropriate, we might also want to do this with state elections for a Governor and a Lieutenant Governor.
Since the Electoral Collage and other electoral rules are defined in our Constitution and amendments, we would need one or more new amendments to make the above changes. Although the process to enact these new amendments would take time and might be difficult, the improvements to the electoral process and the ability to elect a President and Vice President who are better qualified and who would better represent all of us would be well worth the effort.
Nowhere in our Constitution or its amendments, or in any law does it directly grant the President the power to issue executive orders. However, many believe this power is derived from Article II of the Constitution and from a delegation of power from Congress through specific laws.
In section 1 of Article II, it states that “Executive Power” is vested in the President. Based on the definition of executive power, this just means that the President has the responsibility and the power to execute and to enforce our laws. In section 3 of Article II, it states that the President is required to “take Care that the Laws be faithfully executed”. In essence, this just means that the President must ensure that our laws are executed as they are written and not as the President wants them to be.
Therefore, by itself, the Constitution does not grant the President the power to issue any executive orders. Even if we did assume that the President could issue some so called executive orders, based on what the Constitution says, they would still be limited to making sure that our laws were faithfully executed and enforced. That is, the President could not use an executive order to change our existing laws or to create any new laws.
This means, that the only way the President should have any power to issue an executive order to do anything that was not already in the law would be if Congress specifically granted that power through one or more laws. Of course, even when Congress has done that it should only give the President the power to issue executive orders for the specific reasons granted in those laws and then often only in some specified extreme cases like when there is some emergency. Although, it has often been the case where the President simply declares a non-existent emergency as an excuse so that some wanted executive order could be issued.
Based on this, we would rightly assume that the issuing of executive orders should be rare and limited in scope. However, that is far from what is happening. In fact, executive orders have become increasingly common and cover a broad range of topics and issues. Many of these executive orders go well beyond what is allowed by law and have a profound impact on our finances, well-being and safety. In addition, executive orders are often reversed by a subsequent President or challenged in the courts.
Since President Truman, about 12% of executive orders have been reversed by a successor. In recent history, this reversal rate has risen to over a third. Since many executive orders are issued at the whim of the current President and not enacted in law, a new President can easily reverse those of prior Presidents. This can lead to chaos and the inability of those effected by executive orders to count on any of them remaining in effect beyond the term of the President who issued them.
In recent years, as many as 30% of executive orders are challenged in the courts. Around three quarters of these are blocked by the courts. Since it can take years for these challenges to make their way through the courts, many of them are superseded by the current President or reversed by a subsequent President before a final decision is rendered. Therefore, it is impossible to determine what the total percentage of these executive orders would have been found to be illegal or unconstitutional. However, many are found to be so.
The above demonstrates that we have significant issues with Presidents issuing executive orders. To fix this situation, we need to enact laws to put some serious limitations on the types of executive orders that can be issued, when they can be issued, who can reverse them and when they can be reversed. In other words, any law that is enacted that would grant the President the ability to issue executive orders should clearly spell out that fact and clearly spell out all the limitations on what those executive orders can do.
For instance, here are a few types of limitations that could go into these executive orders. If an executive order can only be issued when there is a certain type of emergency, then an appropriate congressional committee should need to confirm the emergency before the President can issue the executive order. If an executive order would result in more than a specified cost, then Congress approval should be needed. If an executive order reversed an earlier one, then there should be some review process to limit any whiplash that would result.
We would also want to bar any executive orders that are counter to the Constitution or any of our laws. Therefore, all executive order should be required to explicitly identify which law grants the President the authority to issue it. In addition, if Congress has passed a law, then only Congress should be allowed to change or to eliminate that law. Then, if an executive order is challenged, the courts should immediately block it if it appears to be illegal and then expedite a final ruling. Letting an illegal executive order stand for even a second could result in irreparable harm.
In the first clause of section 2 of Article II of the United States Constitution, it says the President is Commander in Chief of the military, can require the opinion of the heads of the executive departments and can grant reprieves and pardons. For the reprieves and pardons, it specifically says the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”.
Our founding fathers intended the power to reprieve and to pardon to be a final check on the legal system. It was to be used as an act of mercy that would address unfair or overly harsh laws and judicial mistakes. Although they debated whether the Senate should be required to approve reprieves and pardons, they decided against it. Instead, they believed that this power should be given to a single responsible person who could consider justice and the national interest above political passions. They decided that the President would be this responsible person.
Although the Constitution and history seem to make it clear that the President has the power to grant reprieves and pardons, this does not mean this is a good idea. First, should one person’s opinion be able to override those of the legislatures that wrote the laws and all the judicial personnel who would or have convicted someone of a crime? Second, can we always be sure that our President is a responsible person who will always do what is just and in the national interest? For me, given what we have seen recently, I believe the answer to both questions is a resounding no.
One issue is that a President may not understand all the consequences of a given reprieve or pardon. In addition, a President could prioritize reprieving and pardoning political allies, donors or others who do something that benefits the President. In an extreme case, the President could direct some individuals to commit crimes and then pardon them. Therefore, I believe that we need to make some changes and to put some limitations and some checks and balances on the process of granting reprieves and pardons.
One option might be to add a requirement that the Senate would need to confirm any reprieve or pardon as our founding fathers had considered. Another option might be to add a requirement that an independent nonpartisan Board of Reprieves and Pardons staffed with retired judges or other legal professionals would need to review and to approve all requests for reprieves and pardons before the President could grant them. The idea in these options or any other option would be that there would be enough responsible individuals who would have a say to prevent reprieving or pardoning the wrong people.
In the second clause of section 2 of Article II of the Constitution it states that the President “by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”. This means that the President can nominate individuals to fill a variety of positions within the government, but only ones that have been established by law and they then can only be confirmed when done so with the advice and consent of the Senate.
Before someone is nominated, the President and White House staff should select and vet a candidate. The candidate vetting process should include reviewing qualifications, performing background checks and reviewing financial records. In our modern area, this should now include a review of a candidate’s social media accounts. However, even with this vetting process, a lot of unqualified or flawed candidates still end up being nominated and a lot of highly qualitied candidates are ignored.
A major part of the problem is that a President will often nominate individuals based on their political views, which would limit the pool of qualified candidates and may exclude some of the most qualified candidates. Since each of the two major political parties only represents about 30% or less of the voters, that may limit the pool of candidates to the 30% of voters who belong to the President’s political party. Only rarely do we see a President nominate someone from the other major political party or someone form the more than 40% of voters who are independents. Another part of the problem is that a President may nominate some individuals based on their support of the President instead of their qualifications for the job.
Once the President sends a nomination to the Senate, it is first sent to the relevant committees where they will hold hearings and vote on the nomination. If a majority on each committee approves the nomination, it is placed on the calendar so that it can be debated and voted on by the full Senate. Even after these hearings and debates, some unqualified or flawed candidates are still confirmed. This is especially true when the Senate is controlled by the President’s political party.
Part of the problem lies in the overly partisan nature of this process where too many Senators in the same political party as the President feel it is their duty to approve whoever is nominated irrespective of whether the nominee is the best person for the position or even qualified. Another part of the problem comes from the Senate not fully vetting candidates and not requiring candidates to fully answer all relevant questions about how they would do the job that they were nominated for.
What we need to do is to expand the list of candidates. One way to do this would be to go back to what it says in the Constitution about getting advice from the Senate. That is, allow all the Senators to suggest candidates. These could be individuals the Senators are familiar with or who have been suggested by others. An alternative might be to let anyone submit a suggested candidate for a position.
Then there should be a nonpartisan candidate nomination panel that would compile a list of the suggested candidates irrespective of any political party affiliations, whittle that down to a shorter list of the most qualified candidates, vet those candidates and then send an updated and ordered list to the President of the most qualified and least flawed candidates. This panel should also keep up to date lists of qualified and vetted candidates for all positions so they would always be available in case a vacancy needed to be filled.
The President also has the power to fill temporarily a vacancy during a Senate recess. This means the President can and often does fill these vacancies with candidates who are even less qualified and more flawed than would be the case with candidates confirmed by the Senate. This would be the time to make good use of the candidate lists kept by a nonpartisan candidate nomination panel. We should require that the President must select someone from the appropriate list for a recess appointment. This would help to ensure we get a good candidate to fill the position even if it was just temporary.
Until such time when we can eliminate the political parties, we need to try to limit the partisan nature of nominations and approvals. Having a nonpartisan candidate nomination panel would help, but the president and the Senate could still nominate and approve candidates who have too much of a political leaning. Therefore, we should add a requirement that all approvals need to be bipartisan. That is, we would need to have some minimum percentage of votes for a nominee come from each party.
Section 4 of Article II of the Constitution states in full “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. The Constitution also specifies the roles of the House of Representatives and Senate in the impeachment process.
These impeachments are handled in a two-step process. First, the House of Representatives will investigate the potential charges against the official and, if warranted, will vote on “articles of impeachment”. If they are passed by a simple majority, they are sent to the Senate. Second, the Senate will have a trial where select members of the House will present their evidence. If a two-thirds majority of the Senate votes for conviction, then the official is removed from office.
Although not explicitly granted by the Constitution, it has been assumed that the President also has the power to fire government officials. This stems from the President’s constitutional duty to “take care that the laws be faithfully executed” and from the theory that the President inherently has the power deriving from the President’s constitutionally granted executive power to fire all executive officers. However, the Supreme Court has ruled that Congress does have the power to impose limitations on the President’s power to fire officials. Although some limits have been placed on these firings, I believe that there should be some stricter limits in some cases.
Over the years, there have been few impeachments, but Presidents have often fired officials. When officials are fired for not faithfully executing our laws, then these firings are absolutely justified when the accusations are true. However, Presidents have also often fired officials when they do not do what the Presidents has wanted. When officials are following the law and using their expertise to do what they think is best for our country, then firing them would harm our country. Therefore, we need to have a process where we can stop the President from firing officials unjustly.
My idea would be that since the Senate must approve the appointment of these officials, then they should also be called upon to remove these officials. That is, if a President wants to fire an official, then the request should be sent to the Senate where it would go through a similar process that an appointment would go through. In addition, if a Senator believes that an official is not faithfully executing our laws and the President is not willing to initiate the firing of this official, then there should be a process for the Senate to initiate the removal process by revoking their approval.
Recently, there has also been some effort by the President to fire large numbers of federal employees. Some of these firings have reduced staff in some departments of the government to the point where those departments can no longer function effectively or at all. It seems that the President wants to eliminate these departments, but cannot do so without congressional approval, so is instead trying to eliminate them virtually by downsizing their staff to the point where they cannot function.
Impeding the function of congressionally mandated departments by firing their employees goes against the President’s constitutional duty to “take care that the laws be faithfully executed”, which should be an impeachable offence. However, that may only come after the damage has been done. Therefore, what we really need are stronger laws to protect these government employees and their departments. One change might be to require congressional approval before any reduction in staff of more than some percentage over some period.
Even when the President has not done anything that rises to the level of Treason, Bribery, or other high Crimes and Misdemeanors which are required for impeachment, we may believe that the President is moving our country in the wrong direction. In some countries, when the popularity of a President or Prime Minister sinks, new elections can be called. I believe that we need something similar here in the United States. That is, we could have a vote of confidence each year, and if the vote of no confidence gets too high, then a special presidential election would be called.
As mentioned above, the Constitution does not specify any specific duties of the Vice President except those related to being President of the Senate. The only other established duty for the Vice President would be to wait around to become the next President in case the current President is no longer able to perform the duties of being President. Although most Vice Presidents are delegated some tasks and duties by the President, I think we should establish some more duties, responsibilities and powers in the law or in the Constitution.
If the Vice President has more duties, responsibilities and power, then more and better qualified individuals would be interested in the job. This would be especially useful if we went with the idea of electing our President and Vice President separately but would also be useful if we went with the idea of making the Presidential runner-up the Vice President.
One idea would be to give the Vice President a role in issuing executive orders, granting reprieves and pardons, nominating individuals to fill the positions within the government and terminating government officials. For instance, we could require that the Vice President would need to agree to each of these acts. If the Vice President did not agree to one of these acts, then we could give the President the ability to go to the Senate to get approval. However, this would only work after we eliminate the political parties and elect the President and Vice President separately.
By requiring the President and Vice President or the President and the Senate to agree we should be able to prevent some of the otherwise bad executive orders, reprieves, pardons, nominations and terminations. The reason for this is that the President would be forced to get more buy in on these acts, which means the President would need to articulate clearly the benefits of doing these acts.
In some cases, we may want to do more than just giving the Vice President more say in these acts. For instance, we could have the Vice President chair an independent nonpartisan Board of Reprieves and Pardons, chair independent nonpartisan Government Official Nomination Panel or oversee any proceedings to remove any government officials.
In addition to the above additional duties and responsibilities, the Vice President should be given a bigger role in more functions of the executive branch. For instance, we could spell out more of a role in domestic and international policy. This could include things like emergency declarations, military action and keeping the public informed.
In recent years, there have been many cases where the President, Vice President and others have selected which news outlets and reporters can and cannot ask questions. It should not be up to the President, Vice President, Cabinet Officials, Representatives and others in our government to decide who can ask them questions. If our government officials only talk to the press who they consider to be friendly to them, then all we are going to get from them is propaganda.
What we need is an independent agency that can ensure that all news outlets and all their approved reporters will have access and are allowed to ask their questions. To be an approved reporter, someone would need to be assigned by their news outlet and to have passed an appropriate background check. This independent agency would ensure that reporters had equal access and ability to ask their questions. We need to come up with a method of independently selecting who can ask the next question instead of the person being questioned getting to decide. We might have an independent person do the selection or have reporters draw lots to decide the order of who can ask questions.
We should also add some requirements for certain government officials to speak to the press on some regular basis. Since we cannot all ask our representatives questions. The press needs to be our agents in asking our questions. In addition, on a regular basis our representatives also need to ask those in the executive branch questions including the President to keep them and us informed of what they are doing and to keep them accountable for their actions.
Legislative Issues -
Introduction to the Legislative Issues affecting Our Future Path.
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