Überlegungen zur US-Constitution. Teil A.

 

Zu den nachstehend fett angemerkten Daten habe ich E-Mails mit Attachements nachstehenden [<<<<<…>>>>>] Inhalts abgesetzt:

 

[Sorry, my English is far from being perfect.]

 

<<<<<

 

Some reflections on the General Attorney Congressional Inquiry’s Issue

 

*(Citations and background intelligence after www.wikipedia.org and www.archives.gov, respectively.)

 

20070711, 1302

Some time ago I already reflected upon the legitimacy of the actual US Constitution (USC) regarding formal requirements followed or not followed when it was established. It is therefore, after my sight, probate to have an eye onto the Articles of Confederation (AOC), too, even if only to find the right or a better interpretation of the USC.

In this regard there is, first of all, to state that the AOC seems to have positively declared powers of States while Article I Section 1 of the USC reads as follows:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This cited section (in connection especially with Section 8 of the same Article and with the Congressional Power of Enforcement Clauses in the different Amendments to the USC) in the contrary to the AOC defines and limits positively (the legislative) powers of the Union so that congressional powers provided in the USC and in its amendments, in my view, towards that of the States generally must be interpreted restrictively.

Regardless the Supreme Court’s rulings concerning the Eleventh and the Fourteenth Amendments, on the other hand, Article II Section 1 Clause 1 of the USC reads as follows:

The executive Power shall be vested in a President of the United States of America.

Regarding Article II Section 2 Clause 2 of the USC, which reads:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.;

and having in mind the letter of the Presidents Counsel, Mr. Fielding, to the two Mr. Leahy and Mr. Conyers (!), from July 9, I suppose that there has been vested by the Senate the Power to appoint Federal Attorneys in the President alone. There is, in the USC, no more specific provision about the appointment of Federal Attorneys.

The question, at all, what executive power on the one hand and legislative power on the other, respectively, in the jurisprudence is, not always is to respond to that easily. The power of participation or better: cooperation of the Senate and the President mentioned above mirrors the problem of demarcation of definitions of power branches; a similar case is – here between the jurisdictional and the legislative powers – the power of Congress to declare the Punishment of Treason after Article III Section 3 of the USC.

But after all, above cited Article II Section 2 Clause 2 of the USC vests in the Senate (as in one of the two Chambers of the Congress after Article I Section 1 of the USC) power to give advice concerning and to consent to appointments by the President and, much more argumentative, here, to delegate this power by vesting it in the President alone. In this light the word “herein” in Article I Section 1 of the USC deems to mean “in this Constitution” much clearer than only “in this Article” or even “in this Section”, which latter one would still fewer not make the tiniest sense, at all.

For the first, it therefore is to state, that, despite the mentioned power of cooperation of the Senate and the President, the power of appointment (especially) of Federal Attorneys is primarily a legislative one – and it remains to be a such one, too, when the Senate have delegated it to the President alone, because, which seems to be clear, although not expressively mentioned in the text, the Senate can revoke such a delegation at any time.

This result deems to be proper also in the light of jurisprudential dogmatic: A States representative (in the sense of a functional tool of it) for itself is not more than the incarnation of the laws (while the output of the executive branch is their fruit), and by its appointment alone, there is (in a material sense) nothing being executed but more constituted, so that such an appointment should be regarded as an act of legislative power rather than of the executive.

But all that does not alter the fact, that the problem, how it is discussed until now, seems to be another one – which experience reminds me on a passage of the President’s recent speech on the State of the Union, concerning dealing with monies in the committees:

Even after exerted searching for it, I could not find in the USC any expressively provided power of the House nor of the Senate to any inquiry other than concerning impeachment; which, by the way, after the USC is another example for a power of fluid limits: see the impeachment’s reference in Article III Section 2 Clause 2 of the USC; which can explain two things:

At first, why the President significantly had proposed to agree with the subpoenas only by delivering testimony without oath and without record; and secondly, that the jurisdictional branch, too, in the latest consequence, is just deriving of the legislative one, by which we are returning to the Articles of Confederation, even though against this latter view one could argue, for example, that it was James Wilson* who designed Article III Section 3 of the USC, and he was – in a wider sense – member of the jurisdictional branch: but such a view of mechanics of generating laws might lead us, regardless of the practical facts prevailing nowadays, within a (inner?) circle.

Finally, one should mention here, that in the given context essential Clauses of Article I Section 5 of the USC read as follows:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

So – irrespectively of the constitutional legitimacy of the existence of Congress’s Committees, which is far away from doubtlessness, even in the case of inquiries like these – we have to see, that procedural guarantees, how they are provided for example in the Fifth Amendment, have to be strictly respected in proceedings over impeachment, which is the only form of inquiry about the President’s executive and legislative administration work that is given at hands of congress by the USC and its Fourteenth Amendment, probably (?) unless its first section’s last half-clause would be read (semantically exclusively correctly) in a collectivistic emphasized manner rather than an individualistic one.

 

20070711, 2317

The thing is, that the appointment of officers other than Supreme Court’s Judges provided for in Article II Section 2 Clause 2 of the USC obviously means one for a period timely limited which can be verified by comparing that with the different special rule in Article III Section 1 Clause 1 of the USC concerning Judges; so that the Law mentioned in Article II, for establishing the appointment shall also provide for a limited period of office.

This causes two things: At first, that (regular) dismissals of such officers have normally to be connected to (new) appointments; and secondly, that the irregular dismissal during the period of office in any case and regardless of an eventually passed law to vest the power of appointment in the President alone, remains an act of legislative power and is nothing else than the removal from office by impeachment. This is why Article I Section 3 Clause 6, which reads:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.,

distinguishes the case, when the President is tried: there could be tried also somebody else of the officers mentioned in Article II Section II Clause 2 of the USC!

What stays unanswered is the case of occurring inability of officers in office caused by illness and other disablements. But may well be that this lack truly is not the case: the last Clause of Article I Section 3 of the USC says it clearly:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

So impeachment conviction need not necessarily be caused by guilt: this is a parameter whose assessment remains reserved to the juridical branch.

For all I could infer from the several email correspondence concerning the issue and published at The New York Times’ internet site, there is a US Code providing that appointed Federal Attorneys stay in office for four years and beyond that as long as the newly appointed Attorney has proven in office. And obviously each of the now dismissed attorneys had yet been serving for this period of four years.

By the way, there is another consequence of the segregation of power branches (which leads me to revise or precise my former sight in one point):

The power of appointment once vested by Law in the President alone can not be regained easily by the Senate because of the President’s Power to decline the approval of bills (Article II Section 7 Clause 2 of the USC). This indicates that the said Law must be timely limited itself, too. This makes sense, because such an delegation should be dependent on the individual personality of the President in Office: the Senate should not blindly originate a Bill for such a Law!

But this again indicates and implicates a segregation of political parties and their influence from official State functionalities!

 

20070714, 1324

There are two – for very good reason – intertwined points being to be added:

Once again, there is to cite Article I Section 3 Clause 7 of the USC:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The aftermath of being disqualified for holding and enjoying any Office requires procedure for impeachment being permissibly conducted after withdrawing from office, too; because otherwise the sinner could take over some other office after withdrawal and thus escape impeachment.

But the question is, whether the given alternative, which deems permissible after the above cited Clause (the meaning of the term “impeachment”) and following an argumentum e contrario out of Article II Section 4 of the USC at least within a period of probation, to remove somebody from office for reasons he or she has put during a term of some other (former) office could, for reasons of public interest, sufficiently substitute intentionally not applied impeachment of a former officer who presently is not acting as an officer.

Anyway, in such a case of grounds getting around only after withdrawal, there seems to be room (in the seclusion) to move within a Senate’s power of assessing, whether to try impeachment should be appropriate.

Therefore, of course, it must lay within the Senate’s competence after Article I Section 3 Clause 6 of the USC to sound out a given case of suspicion, in order to attain a basis to decide over applying or not for impeachment with the House; which must apply still more in cases of suspect Acting Officers.

All this wants to be derived of the fact that the last Clause of Section 3 of Article I – against its material scope and object – does not stand within Section 2 of this Article, which obviously shall remind the Senate on the meaning of impeachment, which solely they are competent to try and which – as already shown – has to be handled with full respect of procedure garanties.

This leads to the second point to be paid attention to:

The first term of Article I Section 7 Clause 2 of the USC reads as follows:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States:;

and – once again –

shall appoint …, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The contextual connection of these two cited clauses, regarding especially the emphasis which lies on the word “but” after the term “shall be established by law”, results in a independent power of Senate to pass such a law by which they vest the power of appointing such officers in the President alone (or in one of the other institutions mentioned there).

So the term “shall be established by law” (without saying, who shall pass it) obviously refers to Article I Section 7 Clause 2 of the USC, while the following term “but the Congress may by Law” – and not that it would say that it shall be the Senate who only may originate such a bill! – obviously shall make this competence exclusively reserved to Senate, which implicates that for passing a contrarius actus the Senate just as little depends on the House nor on the President.

This makes sense, because with such a law there is disposed of nothing else than a special constitutional prerogative of the Senate, which only they shall solely be competent to transfer to, instead of themselves, one of the institutions mentioned there (then acting beneath the President) or to the President alone, which prerogative by doing so only becomes a privilege.

This legal conception also offers the Senate room to move in deciding whether they shall pass such a law (vesting the said power in the President alone) without timely limit or, respectively, limit which takes care of the personality of the Acting President (that could be an absolute political Don’t) by being secured themselves the power to revoke that by law, at any time, and without needing the approval of the President then in Office, which again closes the circle to the special background meaning of Article I Section 3 Clause 7 being set there and wisely not in Article I Section 2 of the USC:

There are – maybe – imaginable constellations by which the revocation of a vesting law formerly unlimited passed could be enough to meet requirements of restraining uncertainties stemming from the personality or from the entourage of the Acting President so that impeachment has not to be tried.

And here is the point, where we have to return to the Fourteenth Amendment. Its Section 1 reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The last (underscored) half-term after my view means something completely else than what, so far I have learned, has been alleged to its meaning:

The thus highly extolled dogmatic of equality of man (before the law), in the USC or, respectively, in its Fourteenth Amendment is not resulting of this last half-term but of a connection between that and the preceding half-term: While the first of them grants due process following the law to whom it (the issue) may directly concern, the second one commits the States towards anybody within their jurisdiction to apply, i. e. “to protect”, the (applicable) laws to anybody (‘s case within their jurisdiction) in the same way.

Thus, the last half-term of this Section of the Fourteenth Amendment grants the US citizens something which we Austrians – allegedly and after the jurisdiction of the Austrian Constitutional Court – are not granted: that is to say, that, while the Road Traffic Act generally forbids parking in certain places or at certain times etc., nobody must pay, for example, for false parking, while his neighbour has not!

Maybe this should be a momentum which the Senate should keep in their minds during considering whether to try impeachment or not; because following an argumentum a minore ad maius – or, however one wants to see that, a maiore ad minus – the Fourteenth Amendment clearly should be applicable to duties of Federal Authorities or other public legal bodies, too.

The consequence of all that is, that the issue obviously needs an out-of-court plaintiff which could be the American people, and which being such a plaintiff would not realize Treason, because of the main reason that the Fourteenth Amendment grants to everybody under US jurisdiction the equal protection of its laws!

That is why this issue has been handled that distinctly.

 

16 Jul 2007 11:26:00

[Intermezzo:]

The Vice Senate pro tempore

 

1.

An oppinion is nothing a authority should put as a basis of the fullfilment of its duties. This is resulting in the President’s power of directing the officers of the different administration branches. (The USC uses here very noble language!)

The next consequence of that is, in connection with impeachment, the Vice President’s fuction as Chairman of the Senate in which function he is kompetent to out to the agenda a voting over trying impeachment.

The different usage of "principal" and, respectively, "inferior" in the same Section shows that the USC wanted to make the Vice President, as a principal officer, a receiver of Resident’s directions, too.

2.

in the year of 1990, there have entered into some other treaties different from the CFE, but verry connected to it, having their roots in the early 70ties.

These Treaties are in contradiction to the NPT and, far more than that, jus cogens of International Law, because they provide for a (secret) cooperation between nuclear weapon States to conduct explosions in non-nuclear weapon State’s territories, upon their "request", which compells them to partially let go their souvreignty (regarding Article III of NPT, which does not provide safeguards over activities in their territories not under their jurisdiction!)!

So suspension of FCE is a first stepp to terminate these treaties, and no reason at all to be in a hurry or fearful or what ever, at least for men!

Lots of kisses

Arthur/Papa

 

 

20070815, 1730

Who is Jupiter and who bos?, or: Can a Parliament’s House ever be fallible?

Whatever there should be provided for in an eventual U.S. act being ruled over administrational measures against foreign terrorist activities, I do not suppose that it delivers the administration’s power to treat a foreign state’s official governmental institution – like here: a branch of its Army – as a terrorist organisation.

And if such an Act nevertheless should do so it would be in contradiction to the USC which reserves such a measure, materially regarded being nothing else than a declaration of war, to Congress.

The thing, beneath that, is that such a listing only because of the reason mentioned by New York Times, U. S. Weighing Terrorist Label for Iran Guards, which not yet immediately had resulted into a declaration of war by the Congress, would be equating the U.S. troops’ job in Iraq with an illegitimate act or, respectively, admit its such character.

It seems to be evident that Mr. Bush’s administration, keeping in mind what we have learned about U.S. definition of Treason and the United States of America’s History (including that of the European discovery of America), has some kind of “checkmate” of nine men’s morris to struggle with (I cannot find a term for the game’s situation where the one player has build such a constellation each move enabling him to remove a piece).

So it is a little bit as if the administration were dependent on these supporting actions by Iran’s Guard which sight has closed a circle round the ongoing invasion on the one and the 1979 revolution on the other hand, Saddam Hussein with his question concerning a Kuwait invasion put to ambassador Gillespie (her name was Gillespie, wasn’t it?) in between.

This, too, is why the upright human part of mine does not want to understand why they have hanged him – shouldn’t the assumption that he actually is dead be a means of evidence that the tribunal in fact was independent which, regarding the situation in Iraq, seems to be rather little probably.

So what the hell crazy things are going on there!

Or was his death only raping his knuckles for grasping after Kuwait that brazenly?, which would draw the trace of liability towards European islands in the – ethnologically – very ancient, not to say most ancient north, which would be best corresponding with Calvin’s Taliban like portrait.

Hybrids, as far as one’s eye can reach!

🙂 ?!

So is it my dammed holy duty to commit suicide, too, or is there, anywhere, a last physician who can help?

By the way, neither 0,8 nor any other (alcohol) I had inside when I said the best for all would be when Russian (Siberian) gas to export would go to China.

 

20070816, 1916

Some reflections on the General Attorney Congressional Inquiry’s Issue (continued)

 

 

Introducing I have to state that I waited that long because after my sight there is not even a single cause why that issue should be necessarily discussed at all – thus clear is illegitimacy of its conception!

But I suppose that this “Executive Privilege” cited also in this Mr. Fielding’s letter of July 9 to Chairmen Leahy and Conyers is provided for in some U. S. Act. – Anyway!

I further suppose that for instance Mr. Rove stood and is still standing on a official U. S. payroll as this “Deputy Chief of Staff” (online NYT, 20070813, Karl Rove, Top Strategist, Is Leaving the White House).

I really wonder how somebody who is standing on a official United States of America’s payroll should not be regarded as one of “all other Officers of the United States” in the sense of Article II Section 2 subparagraph 2 USC.

But there is no need to consult financial aspects in order to come to the same conclusion:

How shall the Senate and the House execute their fundamental functions of an impeachment conductors if there are, regarded only in a material way, “officers” (obviously executing U. S. laws by essentially having part in building the President’s laws executing opinion) when these officers seem to be more equal than others, although it’s each of them with their advising opinions and views who practically execute the laws in stead of the President of the United States of America who becomes a bit player, a tool of these advisers who enjoy – after their or the Political Party’s opinion – immunity from impeachment!

These cannot be seen else than in contradiction to the US Constitution. And in particular it is contradictory to Article II Section 2 subparagraph 1 where is provided that “he [the President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”: this afore cited passage together with that of Article 2 Section 1 subparagraph 1 USC, where there is stated that all the executive power shall be vested in a President, makes clear that the President is senior chief of the administration, and even in this function shall be entitled to gather opinions of the principal officers of all departments.

So the question is, where should there be place, at all, for advisers and counsels of the President other than the principal Officers in each of the executive Departments (who obviously are synonymous with Heads of Departments, one subparagraph below)?!

None of the mentioned opinions of these principal officers have necessarily to be identical with the President’s later executing decision, which regardless of those opinions falls into his, the President’s own responsibility.

But this does not mean that those officers who gave their opinion (which led or not to the President’s decision) would nor should be beyond any responsibility, especially under impeachment!

Practically that would result in a fatalistic clean bill of health for every such officer which would clearly be contradictory to the USC.

But on the other hand that must mean, too, that there is no room for such advisers or counsels who are not principal officers under Article II Section 2 USC and thus, in a given case, object of impeachment process!

Or should it else be that such advisers and counsels other than such principal officers subjected to impeachment shall have the right and practical opportunity to give advise to the President of the United States without having to fear any assertion of responsibility therefore?!

Maybe a decision made by a President upon such advise leads to that President’s removal of office by impeachment, and then he dies before he can (hindered by such Executive Privilege) communicate that he made that decision upon the advise of a certain counsel: maybe the same counsel will be counsel of the next President and give advise to him, too.

That might be a rather construed example, but it should show what it’s all about and why the President is not entitled to grant Reprieves and Pardons in case of impeachment: because the issue there would not just be a benefit for the sinner but a omission of protection of the United States of America and its people from disabled or incompetent officers to which we should count official advisers to the President, too, and, in any case, regardless of their name or title, which, by the way, is precisely defined in the above cited Article of USC by calling them principal officers of departments!

In addition let me cite of S/2007/307/REV.1, paragraph 14:

“At the same time, the relationship between Minawi as Chairperson of the Regional Authority and existing Government structures in the three Darfur states needs to be fully clarified, and adequate infrastructure and logistics provided for the consolidation and effective functioning of the Regional Authority.”

How again was that motto of Spider Man in the end of the movie (Part I)? – And who is doubting on a necessity (under the USC, too) to draw a conclusio e contrario out of this motto regarding the responsibility of such advisers, who at least, I am very sure, are of highest competence and knowledge.

So should the only reason for this so called Executive Privilege be a hide and seek concerning real Principal Officers or Heads of Departments of the United States?

So then let me ask: Who long do we want to play on the game?

It’s boring me!

 

 

20070818, 1530

Well, on the other hand, there are some powers of the President provided for in the USC regarding which the conclusions drawn in Part IV of this essay may not fit that directly and, therefore, need some further explanations:

Just for now letting unconsidered the strange wording of that USC clause’s second sentence, next to the President’s function of being only Chief of administration (of “execution” or more precise: of the “executing power” ) above the Heads of Departments after Article II Section 1 subparagraph 1 USC there are, in the USC, set forth the President’s Powers

a) to approve bills or other legislative (electoral) acts (Article I Section 7 subparagraph 2 and 3 USC)

b) to be Commander in Chief of the – I comprehensively call them – armed troops (Article II Section 2 subparagraph 1 USC)

c) to grant Reprieves and Pardons (ibidem)

d) to make Treaties (Article II Section 2 subparagraph 2 USC)

e) to nominate and appoint certain officers (ibidem)

f) to grant commissions (Article II Section 2 subparagraph 3 USC)

g) to give to Congress the “State of the Union” (Article II Section 3 USC)

h) to recommend to them measures (ibidem)

i) to convene or adjourn both Houses (ibidem)

j) to receive especially Ambassadors (ibidem)

k) to survey proper execution of the Laws and to commission all the Officers (ibidem), which Power seems to correspond with the one mentioned in Article II Section 1 subparagraph 1 USC and delivers to the President the Power of direction of all Officers.

The above yet mentioned second sentence of Article II Section 1 subparagraph 1 USC in connection with the same Section’s subparagraph 5, both of which use the term “Office of President” in a contrast to the “executive power” mentioned in the earlier of them indicates what is clear anyway, that there are still some other powers of the President different from that of being Chief Executive Officer (in a material sense).

Any of these enumerated Powers, except k), is not suitable to be regulated in detail by Law other than the USC itself. So I would say that in the spirit of the USC the President in conducting these Powers shall be bound only by the USC.

Here, of Article II Section 1 subparagraph 1 USC is to quote once again:

“he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The question now is, whether or not,

i) on the one hand, these (underscored) Duties mean only those provided for in passed Laws (addressed to the administration branch) or, too, those resulting from

α) the USC itself and, respectively,

β) those from Commissions (Directions) of the President

(for the latter case those Duties resulting only from the USC would be reserved to the President, but could then contain, in a given case, to give an order to an officer contrary to a passed Law which he, the President founds contrary to the USC; and a required opinion upon a meaning of a direction given by a former President made sense of course, except one would regard such an interpretation of a direction or Commission by the officer as interpreting the USC itself); and,

ii) on the other and partly correlating with the decision of i), the President is entitled to require the opinion of principal Officers upon issues not within their Duties, as for example Duties of the President himself after the above enumerated Powers not subjected to general executive Laws obviously meant by Article II Section 1 subparagraph 1 first sentence USC.

So in so far the President of the United States of America, as many other of other sovereign States, after the USC seems to be a kind of hybrid: on the one side Chief Officer of the administrative Branch (meant by Article II Section 1 subparagraph 1 first sentence USC) and, on the other, a supreme Officer independent from the rest of the Executing Branch regarding the further Powers of the President enumerated above in a)-j).

The logistical fact that the President’s Power (Duty) “to take care that the Laws be carefully executed” (Article II Section 3 USC) is set forth in the same Clause as his Power (Duty) “to Commission all the Officers of the United States” (ibidem) seems to indicate that the President shall not be entitled to give Directions contrary to the Laws, but shall be entitled to require the opinion of principal Officers “upon any subject relating to the duties” which indicates (argumentorelating” and not only “subject of the duties”!) their (the officer’s) right and duty to communicate (upon requirement by the President) to him every improvement of the existing Laws which after their judgement should be made for a better and more carefully performance of executive Power, to the end that he, the President, forwarded such opinion to the Houses after his Power h) above.

Thus results that neither the President’s Power to require opinion nor his Power to direct Officers refers to the President’s Powers enumerated in a)-j) above, except those which may be regarded as dealing with subjects relating to the Duties of principal officers, as there could be at least the Powers after – well, actually it is rather difficult to find any among them to which that should not fit, having a look at the fact, that

a) approved bills (at least in so far as they are addressed to the administration branch) are subjects relating the (future) Duties of principal Officers

b) military orders always indicate the execution of military staff’s duties directly regulated by Laws

c) reprieves and pardons often may be granted only under probation which is to be surveyed, as I suppose, by the Justice Department

d) Treaties are to be executed by the administration (in so far as they are addressed to them)

e) as yet shown, officers are only incarnation of the Laws which they then have, after their duties, to execute

f) ditto

g) the State of the Union will essentially depend on the state of the performance of the administration’s duties

h) (see right above!)

i) (well, this one could be a hit)

j) at least security concerns and issues are affected which, too, have to be executed by administration.

So my former estimate that there is no room for advisers and counsels to the President other than those mentioned in Article II Section 2 subparagraph 2 USC, seems to be correct.

Thus, as it seems, not only the United States of America’s President seems to have a serious problem, too, which, if ever, he could resolve by pointing to a eventually also in the States overdoing Political Party existence, which led to a merging of Powers resulting by coercing into a need for external permanent advisers to him.

Are the advisers in discussion under the issue external? To what extend? And which are, nevertheless, the reasons against a commission of them under the USC (as learned just above)?

🙂

 

 

[Fortsetzung in: Überlegungen zur US-Constitution. Teil B.]

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