{"title":"8 The Core Legislative Powers of Taxing and Lawmaking","authors":"M. W. McConnell","doi":"10.2307/j.ctv11hprfg.13","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.13","url":null,"abstract":"This chapter reviews modern American conceptions of the separation of powers and much of the architecture of the administrative state that grew out of history long before the framers gathered in Philadelphia. It analyzes the essential idea that the fundamental rights of life, liberty, and property could not be disturbed except by the consent of the people, meaning the passage of laws by representatives of the people. It also explores the exclusively legislative character of the power to tax and the power to make law binding on persons within the realm as the foundation stone of all separation-of-powers law. The chapter recounts the beginnings of constitutional government that arose when Parliament won control over the powers to tax, spend, and borrow. It details the process of the constitutional government that began with Magna Carta and was completed by the end of the seventeenth century, a full hundred years before the Constitutional Convention.","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"275 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132236183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Creating a Republican Executive","authors":"M. W. McConnell","doi":"10.2307/j.ctv11hprfg.6","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.6","url":null,"abstract":"This chapter refers to the Articles of Confederation, which governed the new United States until the adoption of the Constitution in 1788. It elaborates how the national government had no executive branch, only a Congress and a tiny judiciary for maritime cases under the Articles of Confederation. It also talks about executive functions that were carried out by Congress, committees of Congress, or ministers appointed by and accountable to Congress. The chapter recounts the development of a new constitution that includes a real executive by the late 1780s. It mentions the framers, who had long experience in colonial legislatures, making it relatively easy for them to draft a practical scheme for the legislative branch.","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116069379","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abandon Chevron, Modernize Stare Decisis, R. W. Murphy
{"title":"The Administrative State","authors":"Abandon Chevron, Modernize Stare Decisis, R. W. Murphy","doi":"10.2307/j.ctv11hprfg.23","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.23","url":null,"abstract":"..................................................................................................... 3","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127596649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Foreign Affairs and War","authors":"M. W. McConnell","doi":"10.2307/j.ctv11hprfg.16","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.16","url":null,"abstract":"This chapter reviews the king's powers of peace and war as of 1787, which included the power to make war, declare war, command troops and the Navy during war, summon and employ the militia, and erect forts and other military installations. It recalls Charles Pinckney, who warned that the Convention was creating an elective monarchy. It also discusses how the Convention vested the bulk of the war and foreign affairs powers in Congress and the Senate, except the executive, and how the presidency gained most of its foreign affairs authority only toward the end of the Convention. The chapter cites the king's prerogative power over foreign affairs that was absolute, at least in theory, under the post-1688 settlement. It talks about the Confederation Congress that typically issued detailed instructions to its envoys regarding what positions to take on behalf of the United States, suggesting that the power to send ambassadors included the power to instruct them.","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124281417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Three Presidents, Three Conflicts","authors":"M. W. McConnell","doi":"10.2307/j.ctv11hprfg.22","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.22","url":null,"abstract":"This chapter proposes an approach to the separation of powers that can be applied to presidents of all ideological stripes and personal dispositions. It cites George W. Bush and the authorization of torture, in which the Bush Administration authorized a written list of enhanced interrogation techniques, such as the notorious practice of water-boarding. It also covers President Obama's agreement between the United States and the Islamic Republic of Iran, along with certain other countries, under which Iran agreed to certain limitations on its development of nuclear weapons in exchange for the lifting of economic sanctions. The chapter describes the impeachment and acquittal of Donald Trump by the Senate as the most acrimonious separation-of-powers conflict in the tumultuous Trump years. It talks about the House vote on impeachment and the Senate vote on removal that surpassed the partisan impeachment and removal proceedings for President William Jefferson Clinton.","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"472 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133487129","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"4 The Audacious Innovations of the Committee of Detail","authors":"M. W. McConnell","doi":"10.2307/j.ctv11hprfg.9","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.9","url":null,"abstract":"This chapter discusses to do with the presidency that were not debated on the floor of the Convention, but instead were hashed out in a series of committees, in deliberations that were not recorded. It describes the Committee of Detail, which gave the office of the president its name, its structure, and most of its powers. It also cites Elbridge Gerry, who moved that the proceedings of the Convention for the establishment of a national government be referred to a committee to prepare a report of a conformable constitution. The chapter recounts how the Convention voted down a motion that the committee be composed of a delegate from every state, which was the usual procedure when committees were used to work out disputed questions of substance. It identifies the five members that were given by the Convention to the Committee of Detail to engage in innovative draftsmanship.","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132130996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Back Matter","authors":"","doi":"10.2307/j.ctv11hprfg.28","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.28","url":null,"abstract":"","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127195973","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Framers’ General Theory of Allocating Powers","authors":"","doi":"10.2307/j.ctv11hprfg.12","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.12","url":null,"abstract":"","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116494788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Debate Begins on the Presidency","authors":"M. W. McConnell","doi":"10.2307/j.ctv11hprfg.7","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.7","url":null,"abstract":"This chapter focuses on Resolution 7 as a debate over the Virginia Plan, which became a debate about which of the prerogative powers of the Crown should be entrusted to a republican executive. It talks about Charles Pinckney, who declared that the Resolution's broad vesting of executive rights would include prerogative powers of the Crown, making the President a virtual monarch. It also mentions Wilson and John Rutledge, who defended against Pinckney's charge of incipient monarchy. The chapter points out that Wilson was the only delegate to utter the term “prerogative,” noting that every comment made in the initial debate over the scope of executive power can be understood in light of the problem of prerogative. It discusses John Locke, who dubbed the powers related to foreign affairs as “federative,” although executive and federative powers are distinct in themselves.","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114592647","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Three Varieties of Presidential Power","authors":"M. W. McConnell","doi":"10.2307/j.ctv11hprfg.20","DOIUrl":"https://doi.org/10.2307/j.ctv11hprfg.20","url":null,"abstract":"This chapter reviews Article II's organization according to the nature of presidential powers: prerogative powers, qualified prerogative powers, powers or duties involving limited discretion, defeasible residual powers, or delegated powers. It analyzes the structure of Article II by two key variables: whether a presidential power derives from the Constitution or a statute, and whether it is defeasible or not. It also mentions Justice Robert Jackson's three-part framework in his concurrence in the Steel Seizure Case, which was adopted by a unanimous Court in Dames & Moore v. Regan. The chapter considers the Steel Seizure concurrence as a prime reason modern separation of powers jurisprudence is in disarray. It cites Jackson's claim that presidential powers are not fixed, but fluctuate, depending upon their disjunction or conjunction with those of Congress.","PeriodicalId":252767,"journal":{"name":"The President Who Would Not Be King","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114523540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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