Constitutional Authority: Theory vs Contemporary Application

Our Three co-equal branches of the Federal Government, they all have specific functions that they are to perform and they all have different levels and applications of authority.  Our founding fathers were very meticulous in constructing our supreme law, otherwise know as the US Constitution.  This founding document lays out enumerated power to each of these three branches, Legislative, Executive, and Judicial.  This authority is outlined with great specificity, and the branches were intended to act within their scope, and not overreach into the functions of the other branches.  Two centuries go by, and we now live in a world where original constitutional principles are recognized, but the words are interpreted in such a way, that they support or advocate for the current narrative, whatever that may be at the time.  The general public seems to be oblivious to the operation of our Federal Government, and the process built in to assure efficiency.  With a toxic political climate, constitutional principles have become convoluted to the point where you can’t even recognize some government actions as being anything close to American.  Where did we go wrong, and how do we fix it?  Getting back to basics seems to be the simplest answer but can we as a society do this in a civil manner, through meaningful debate and acceptance of the opinions of others.  The US Constitution is king and the government must abide by the restrictions it imposes in order to re-establish rule of law.

Congress is given the task of making the laws, and the power that congress is permitted to wield, is included in Article I.  The US Congress is to consist of a Senate, and a House of Representatives.  This first article sets rules for the minimum age that one needs to have attained before running for congressional office, then it goes into the makeup of the Senate and the House, and how the election of representatives is to be structured.   Let’s jump to Article I, Section 8 where some of the authority is given to congress in detail.  Here congress is given the power to regulate interstate commerce, to coin money, regulate the value thereof, and of foreign coin, and to declare war, these are just a handful of responsibilities that are given to congress.  The authority to declare war was given to congress so that the Executive Branch was not solely responsible for sending our military to war in foreign lands as would be the case under an authoritarian government.  What is congress doing with this authority today, and are they within Constitutional parameters?  Let’s start with interstate commerce regulation and how the Federal Government used that authority to justify forcing Americans to buy health insurance in 2010 with the passage of the so called, Affordable Care Act.   How are they doing with coining money and determining the value thereof?  This enumerated authority was forfeited by congress to a private entity that we know as the Federal Reserve.  The declaration of war has also been forfeited for the most part, as Congress has recently been silent when it comes to authorization for armed conflict, as politicians play word games.  When an “overseas contingency operation” is being waged, Congressional authority takes a back seat because they are not calling it a war.

In Article II, the Executive Branch is given authority to act also within a limited scope.  Section I lays out the procedure for electing the President, establishes a minimum age for one to be eligible, covers compensation for the position, and word for word, quotes the oath to be taken by the elected President during the inauguration.  Section II establishes the President’s authority over the military, recognizing him as the Commander in Chief of the US Armed Forces, as well as the power to appoint judges to fill vacancies in the Federal Court, including the Supreme Court with the advice and consent of the Senate.  The Executive can also make appointments when the Senate is in recess.  Per Section III he is also given the responsibility to take care that the laws be faithfully executed.  Section IV states that the President and Vice President shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.  The office of the President in modern day America, has usurped much more authority that what is referenced in Article II.  This has happened at the hands of both parties, and as precedent is set with each violation of authority or abuse of power, the Executive continues to assume a larger, more influential role.  That was not originally how it was supposed to go down, but the office of President has gone through some changes as the demographics of the citizenry has changed over generations.  President Obama violated the War Powers Act of 1973, when he did not notify Congress within the allotted time established by the act when Obama chose to refer to armed forces deployment as “kinetic military action”, and denying that it amounted to what would constitute a war. One of President Obama’s senior aides, Dan Pfeiffer made it clear that, “when Congress won’t act, this president will”.  After he was elected to a second term, Obama said, “I will not allow gridlock, or inaction, or willful indifference to get in our way.”  He was very blatant about violating the Constitutional limitations that were in place.  FDR signed an Executive Order prohibiting the possession of gold coins and bullion leading to confiscation.   Much criticism was hurled at George W. Bush in the aftermath of 9/11 for the explosion of digital surveillance and the death of individual privacy that has snowballed since that time.  Bill Clinton also had some shady actions that went beyond his authority as President.  He placed US troops in the United Nations and subject them to foreign command.  Clinton also took legislation that was rejected by Congress and signed it into law himself, acting as a one-man legislature.  This is dangerous and it has gone on for so long, American people don’t know the difference anymore.  This tendency to act as an imperial president, has seemed to increase in frequency and has not shown that this behavior is partisan in nature.  Obviously, the Constitution as written and ratified circa 1790, is viewed very differently, as could be expected two and a half centuries later.  It is interesting that Executive overreach by one political party, is firmly opposed by the rival party, and then that rival party takes the White House some years later, they are encouraging the President to engage in the same tactics that they opposed when it was being perpetrated by a President affiliated with the other side of the aisle.  This partisan hypocrisy has become commonplace recently, coming from both sides (R and D) in the current and previous administrations, with Trump supporters encouraging him to do things that they raged against, and vice versa with Obama supporters.  It seems like Americans pay more attention to who nowadays, rather than what or how.  But, that is just another manifestation of how American society has evolved.

Article III covers the authority given to the Judiciary, or the Judicial Branch.  This is the check that the founders implemented in order to keep the Legislative and Executive Branches in line and assuring that they stay within their limits.  This was needed to keep the Legislature, and occasionally the Executive honest, as the Constitution has endured through many societal shifts in what is considered the norm, and we have seen the effect on the electorate that this has had over time.  Technology has made a huge impact on interpreting the Constitution, with one example being the 4th Amendment and its application in the age of cell phones and laptop computers.  The courts have become extremely partisan as of late, and appointments have led to contentious confirmation hearings in the Senate as seen recently in the Brett Kavanaugh confirmation hearings prior to him taking his seat on the Supreme Court.  We have witnessed many more 5-4 rulings than we would like to admit, as our Supreme Court seems to be divided.  There are those originalists that interpret the Constitution as the founders seem to have intended, and then you have those that believe that it can be changed with a mere 5-4 ruling by the SCOTUS.  It is frustrating, but we must remember that Alexander Hamilton stressed the importance for an independent judiciary.  He referenced this in Federalist #78 and urged that this independence was an absolute necessity in order to maintain the dignity of the Judicial Branch.

In conclusion, the Constitution has gone through changes, via the amendment process, but it has also evolved necessarily by other means in order to accommodate 21st century America.  Significant shifting of political winds, seem to have hastened these changes recently, and whether this change has been healthy for the country, is still up for debate.  Our Constitution still remains and the partisan pendulum continues to swing back and forth so we can only hope that the balance this creates, keeps things from going too far left or right.


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Avatar photo About Jason Brown

Jason A Brown currently works for a Department of Defense contractor at a clinic in Tampa Florida. He is currently in Pediatrics but has also worked Family Health. Aside from working full time Jason also possesses a Bachelor's Degree in Criminal Justice/Homeland Security. With a full time job, a wife and 13 year old daughter, Jason still finds time to educate people on America’s founding document, US history, and the US Constitution, through his writing, as it is one of his passions.