1 - Presidential Power is limited power. Project 2025 and the MAGA political thinkers espouse a theory of power that contradicts the Constitution. As such, that thinking must be discarded, abandoned, and put aside. To address the problems presented by MAGA thinking, we must confront the MAGA claims with what the framers wrote. The ‘separation of powers’ is a cornerstone of much thinking about the Constitution. While the Constitution creates separate branches of government, it embeds a distributed network of powers—there are checks and balances. While a specific power may reside in a particular branch, that power intersects with powers in another branch. For example, Congress makes bills, but the president must sign them to become law; the Supreme Court can declare that that law violates the Constitution. The Executive branch brings criminal charges, but the Courts decide guilt. Other examples abound. MAGA thinking and Project 2025 make much of the president’s executive power. What is that power? 1. He is limited in his power to create offices within his executive branch; some must be established by law and thus, jointly with Congress. 2. Another power made much of is the President’s unrestricted removal power for those he has appointed. ‘Unrestricted’ is too strong. Unrestricted removal is inconsistent with the 25th Amendment. The president may not summarily remove the “principal officers of the executive department” that have declared him “unable to discharge the powers and duties of his office.” 3. Much is made of the president being Commander-in-Chief of the armed services, but he cannot declare war. 4. It is commonly asserted that the president's pardon power is absolute. What does that mean? Does it mean he cannot be impeached and convicted based on how he exercises that power? No. By design, the president has limited powers. Constitutional interpretations that allow unaccountable power for a single officeholder are suspect and work against the intent of the Constitution to not create unaccountable power. The Constitution clearly states that the President “shall take care that the Laws be faithfully executed.” What is obvious is that for the President to violate a law is in direct conflict with this duty. Ip so facto, the President cannot have any immunity for any acts alleged to have been performed with criminal intent, in violation of law. Adjudication of such matters, except in cases of impeachment, is in the province of the courts, where the judicial power resides. Put simply, absolute immunity for the President does not exist in the Constitution, it is a made-up thing invented by the current Supreme Court for unknown reasons. Nevertheless, we must consider the case presented for it. In Trump v. United States, Roberts imagines a meek and worrying President. Persons elected president are unlikely to match that profile. The nature of presidential power is the core of the Roberts decision (II). Governments are distributions of power. We must consider how the US government divides power as expressed in the Constitution. For the issue at hand, we must also consider whether the Constitution confers either explicitly or by logical inference, presidential immunity from criminal law. The Constitution explicitly refers to the “immunities of citizens,” but this cannot be the immunity at issue here. So, we must conclude that if there a presidential immunity it is to be derived by logic or self-evident practical necessity, or as Roberts put it, by “the nature of Presidential power.” What is the nature of constitutional Presidential power? We know some noncontroversial things about said power: (1) it is limited and not absolute, even within the executive branch, because of powers the constitution identifies that reside in the legislative and judicial branches (see above for examples); (2) it resides in the President and not others such as the vice president. Roberts accepts that there are “powers invested exclusively in him by the Constitution.” (Roberts, III, A) We must consider the meaning of ‘exclusively.’ A truly exclusive power must mean the Constitution grants no other branch the power to act concerning the exercise of that power, not just that another branch cannot exercise that power. For example, just because taking “care that the Laws be faithfully executed” through prosecutions is only exercised by the Executive branch does not mean that duty and power is exclusive to the Executive branch—clearly, the judiciary is involved. Congressional oversight is essential to making “Laws . . . necessary and proper for carrying into Execution . . . all . . . Powers vested by . . .[the] Constitution in the Government of the United States.” (Article I, Section 8) Thus, the only branches that might have exclusive powers are Congress and the Judiciary. Although it is a power of last resort, the impeachment-removal power is vested only in Congress, the courts and the executive branches have no constitutional power concerning impeachment. The House of Representatives has the sole power of impeachment. The Senate has the sole power to try all impeachments. Neither the judiciary nor the executive branch can decide what acts constitute an impeachable offense under the Constitution. If the Senate convicts, neither the judiciary nor the executive can overrule or pardon. The Supreme Court has the exclusive power to interpret the Constitution; constitutional amendment or self-reversal are the only means for undoing the court’s decisions. The executive branch has no exclusive powers, powers that no other branch can act concerning the exercise thereof. Roberts’s view of presidential absolute immunity is a radical view that imagines presidential acts that cannot be performed with criminal intent. If such acts exist, Roberts does not identify them. The Roberts decision, at its strongest and most rational, must be taken to mean that some actions by a president are beyond judicial review and can only be addressed after conviction by the Senate; because such acts cannot be self-prosecuted by the Executive branch, they thus are immune to criminal prosecution. Article III, Section 2 contradicts this view limiting the scope of judicial review. The open question is: who can prosecute the case? A special prosecutor such as Jack Smith can be appointed, or if necessary, Congress could create a Congressional Special Counsel Office (and install it in the DOJ) to handle the case. There is no constitutional bar to the DOJ prosecuting the case. And as we know from the 25th Amendment, subordinates to the president can bring actions against the president. There are no practical or constitutional grounds upon which to base presidential immunity from criminal law. A lack of such immunity does not impede presidential power but is an important guardrail for our constitutional democracy. Vernon V Chatman III Presidential Power is limited power

Topic

Home