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on Monday, September 8th, 2008 at 8:17 am by Radley Balko
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The way our REPUBLIC is *supposed* to work is that Congress makes all laws. Any Presidential Executive Order or Signing Statement that gets codified into law is illegal. People should be far more concerned about Congress, since they are *supposed* to declare war, and the House funds all wars. The President is only Commander in Chief of the military, and has veto power. I like to remind people of these simple facts, and watch their brain shut down due to inability to process it.
Sadly, the above isn’t quite how things work, and as time has marched down we’re getting this Unitary Executive AKA Dictator mentality not only tested by the President (especially Bush2) to see what Legislative and Judicial branches will do about it, but the psychological war is also being won in the public’s mind that this is ok and how it should be.
I agree with everything Lee says except for the unitary executive thing. He’s referring to Presidential power generally; the unitary executive theory basically says that everyone in the executive branch works for the President. I, and many other libertarians, would argue that a more “strongly unitary” executive increases liberty because there would be fewer (one in fact) autonomous actors in the executive branch. I think Volokh had a post on this a while ago. You might want to check that out.
“The President is only Commander in Chief of the military, and has veto power.”
I’m afraid you’ve tremendously understated the President’s role and power. The President is charged with Executing the laws, and this gives him enormous power. This has been discussed on this site before how, for example, the President doesn’t have to have his law enforcement agencies arrest or prosecute anyone for possessing or selling marijuana even though Congress has made those things illegal.
This is part of the design of the Constitution as a way to enhance freedom since the President can only choose to not enforce a law that exists rather than not enforce a law that doesn’t exist. (I suppose he could over-enforce a law to the extent it diminishes freedom beyond what Congress intended, but that’s a separate issue.) This discretion gives the President tons of actual power, and a ibertarian leaning President especially could have enormous effect on the way the laws actually effect people lives by simply not enforcing a ton of laws all over the place.
This is to say nothing of all the executive agencies, that are part of the executive branch, which create regulations that carry the effect of law.