Robbins: Does the president have total power?
I was recently reminded by the president of the 1992 animated movie, “Aladdin.” Near the end of the movie, the Genie — voiced by the late, great Robin Williams — just before he shrinks back into the lamp for what promises to be an extended hibernation, boastfully declaims about himself, “PHENOMENAL COSMIC POWERS!” He then dissolves into his “ittty, bitty living space.”
That karmic moment notwithstanding, and although the president’s statement wasn’t plucked quite verbatim from the movie, what the president said, apropos of the distressing lockdowns we have all recently endured, was that he — and he alone — had the authority to determine when the country would go back to work.
More specifically, with a straight face and what appeared to be unapologetic sincerity, what he declared was that “the president of the United States calls the shots. [The states] can’t do anything without the approval of the president of the United States.” But there was more, much more; “When somebody is the president of the United States,” the president said, “the authority is total.”
That rumbling you felt beneath your feet when the president said what he said were Jefferson, Madison, Hamilton and the other Founding Fathers doing a collective heave to the far right in their graves.
Say what now, Mr. President?
Eh-hem, this just in: There is trifling little thing known as the United States Constitution which, until now anyway, has served us pretty well.
Who calls the shots?
Before going on, it’s worth noting that instead of “doubling down” — what is apparently the president’s favorite dance step — on what he said on Monday instead, by Tuesday, he equivocated by telling reporters that he would “be authorizing each individual governor of each individual state to implement a reopening — and a very powerful opening plan — of their state at a time and in a manner as most appropriate.”
I’m not quite sure why this president conjures up images of movies in my head — perhaps because of his former vocation in reality TV — but I am reminded of the 1982 flick, “The Best Little Whorehouse in Texas,” and, specifically, the Charles Durning character — not coincidentally a politician — who famously danced, sang, and dissembled with his unforgettable:
Ohhhh I love to dance a little sidestep,
Now they see me now they don’t I’ve come and gone
And Ohhhh I love to sweep around the wide Step
Cut a little swath and lead the people on.
But I digress.
By Thursday, the president sidestepped a wee bit little further, telling the governors that, “You are going to call your own shots.”
One last snide broadside before marching bravely on: “Total power” is what authoritarians are all about. Just sayin’.
Checks and balances
But why was the president so wrong?
Well, it’s this.
First, there is this sorta fundamental thing that undergirds the Constitution known as the separation of powers. Some things governmental are reserved to the legislative branch, others to the judicial branch, and still others to the executive, the heap of which the president sits atop.
Separation of powers is a fundamental doctrine of constitutional law under which the three branches of government are kept separate. This is also known as the system of checks and balances because each branch is given certain powers so as to check and balance the other branches. This is about as fundamental as gravity. The whole shebang was designed by the Founding Fathers to prevent the kind of power grab the president articulated notwithstanding his quick release of it from his embrace.
Under the doctrine of separation of powers, there are, simply some commands that the president cannot, like a genie granting his own wishes, confer. Running roughshod over the governors and their states and aggregating “total” power unto himself are just two of them.
And then there is the other little nettlesome detail — the 10th Amendment to the Constitution, to be precise.
What that little gem provides is this: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 10th was the final amendment in the Constitution’s original Bill of Rights.It was added specifically to assure delegates from the various states that the federal government would not step outside the boundaries established in the Constitution. In simple terms, the federal government — the president included — can only exercise those powers that are specifically yielded to it by the states and/or The People.
Claiming “total power” — at least in these United States, that’s still as silly as an animated child’s tale.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org. Mr. Robbins’ new novel, "How to Raise a Shark (an apocryphal tail tale)," is available at Amazon.com.
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