PART 1 OF 3 See Part 2 here
By Michael DePrimo, Attorney, AFA Center for Law and Policy
April 2009 – Editor’s Note: This is the first of three articles by Michael DePrimo looking at the three branches of U.S. government, how to understand their interworkings and how those interworkings may play out in the current administration.
Flags wave. Bands play. People cheer. It is the celebrated transfer of power from one president to his successor, from one political party to another. It is no coup, no overthrow of the old guard. It is the peaceful turnover of the U.S. presidency to a new administration, an event noteworthy as one of America’s best traditions.
It occurred for the 44th time January 20 when President Barack Obama took the oath of office as prescribed by the U.S. Constitution: “I, Barack Hussein Obama, do solemnly swear that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
President Obama’s joyous and peaceful inauguration again put the U.S. in stark contrast to what occurs in much of the world with a transfer of political power. Throughout the history of other nations, such transitions have often generated chaos, violence, fear and bloodshed.
Why has every presidential transition in American history occurred without violence or overthrow? Because we are a nation of laws, not men.
Some people mistakenly believe the United States is a democracy. It is not. The United States is a constitutional republic. There is a critical distinction between the two. A pure democracy is government by the people through majority rule, meaning that the slim majority has the lawful power to effectively crush any minority through political or legal change.
A constitutional republic, on the other hand, is a governmental entity in which leaders are required to govern according to a constitution that limits the government’s power over its citizens. In a constitutional republic, areas of governmental power are separated into distinct branches in order to minimize excesses of power.
The U.S. government, for example, is separated into three branches. The executive branch (president) enforces the law; the legislative branch (Congress) makes the law, and the judicial branch (courts) says what the law is and decides cases and controversies between adverse parties, one of which is often the government.
Through this separation of powers, the will of the majority is curbed to protect individual rights guaranteed by the Constitution or other laws. In a constitutional republic, no single individual or party has absolute power. Therefore, the rights of the minority are protected against abuses by the government.
Though tempered by a system of checks and balances which, for example, allows one branch of government to veto, stall or strike down the actions of another, the president is unquestionably the most powerful individual in the United States and perhaps the world. Article II, Section 2 of the Constitution gives the president the power, with the advice and consent of the Senate, to appoint ambassadors to other nations; high-level advisers (members of his cabinet); heads of agencies (called secretaries, e.g., Secretary of State); and to nominate federal judges (including Supreme Court justices).
He has the constitutional authority, along with the Senate, to make treaties with other nations. He is the commander in chief of the armed forces and state militias. And he has the power to grant reprieves and pardon offenses against the United States. Finally, he has the power to fill all vacancies while Congress is in recess. Presidents often use that latter power to appoint individuals who otherwise could not gain Senate approval.
There is more, of course. Through executive orders, the president has power to change how laws are enforced and regulations are made. Though not explicitly set forth in the Constitution, executive orders have been a part of every presidential administration since 1789 and derive from Article II, Section 3, which states that the president shall “take care that the laws be faithfully executed.” Most executive orders are directed to heads of agencies to ensure that those agencies operate in accordance with policies approved by the president. Agency heads serve at the pleasure of the president and, therefore, can be removed from office if they willfully fail to follow the president’s directives. Executive orders have been criticized, however, as a tool used by presidents to usurp the power of Congress because they have the force of law yet do not need congressional approval.
What might we expect from the Obama administration? Next month’s article will hopefully give some insights into that intriguing question.
During his campaign, candidate Obama promised us change. Under President Obama it is change we shall have. Whether for better or worse remains to be seen. 
CHECK ON EXECUTIVE POWER – In a letter to President Obama in February, Sen. Robert Byrd (D-WV), said that the appointment of White House “czars” “can threaten the constitutional system of checks and balances.” According to a report at Politico.com, Byrd, a constitutional scholar, is concerned specifically about the president’s decision to create White House offices that focus on such areas as energy and climate change, health reform and urban affairs, but are not accountable to Congress.
OneNewsNow.com, 2/25/09
