The powers of the presidency have come under sharp scrutiny and have been a source of contention since the bush administration. The unitary executive theory, if advanced and applied in its strong context, could lead to eclipsing of all powers bestowed on the congress. The founding era aimed at separating these powers between the House and Senate, President, and the Judiciary and entrenched this in the constitution design to avoid autocratic control like the Crown’s exercise over its colonies. The Article of Confederation complements the office of the President in order to avoid concentration of power on the executive.
After the terrorist attacks, President Bush claimed as commander in chief that he had power to conduct domestic surveillance despite a prohibition from Foreign Intelligence Surveillance Act. These interrogation techniques were contrary to the torture clause, 18 U.S.C. 2340-2340A enjoyed by all persons under U.S custody. This was in conflict with the spirit of the constitution’s design which aimed at prohibiting concentration of government powers on one person. The Office of Legal counsel supported these claims by further stating that in times of war, the president was the sole decision maker though they failed in defining the enemy as either the Taliban or Al-Qaeda forces. The founding era had sought to avoid autocratic control and monarchism by eradicating accumulation of either judicial or legislative in the hands of the executive. Though the president has power to repel any sudden exigencies without the approval of congress, this does not empower him to displace its authority and force a state of war. Else, this constitutes accumulation of power without proper checks and balances on the executive .Issues such as movement of troops cannot be carried out without congress approval. For instance, in the founding era George Washington did not dare to contradict a Continental Congress order in the Revolutionary War even when he believed differently. In the civil war, Lincoln only ordered his generals to suspend habeas corpus when the congress was in session.
However, this was totally in line with Article I Suspension Clause which empowers the president to assume congress powers when not in session. This history shows no exclusive alienation of congress powers. Recently, traditional checks are in doubt due to high likelihood of terrorist attacks and availability of weapons of mass destruction by rogue nations leading to chief concern on national security. This is necessitating a review on this statute.
In John Yoo’s memo highlighting on the possible prosecution by the ICC, he states that the U.S is not signatory to the Rome Statute over such jurisdiction. The memo further states interrogation of an operative be it Al-Qaeda is not directed on a large section of the civilian population which is a pre-condition for the ratification of the convention, hence not a war crime. Yoo clarifies that, in his opinion, the prisoners held for terrorist interrogation are not termed as so under the Geneva Convention, despite objections by the Department of State. There is little substantive difference in the definition between the torture clause as established in the constitution’s and the I.C.C. There is refusal by the U.S. to accept the jurisdiction, hence the convention cannot enforce its powers and it’s reduced to carrying out studies.
Another contentious issue is the power of filling casual appointments in the Senate. The constitution empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of United States whose appointments are not in the Constitution otherwise provided for, and which shall be established by law.”It further goes on to dictate:”The President shall have power to fill up vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.” This section, if interpreted without the spirit of law, it can be misinterpreted to accumulate executive power and without consent of relevant consulting bodies, be used improperly.
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