FacebookTwitterRedditEmail

Executive Power: Alan Dershowitz’s Imagination Versus the Constitution

Photograph by Sage Ross – CC BY-SA 2.0

“The Constitution,” Alan Dershowitz claims, “allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty).”

Dershowitz makes that claim by way of defending US president Donald Trump against conviction in the Senate on two articles of impeachment.

More specifically, he disputes the Government Accountability Office’s claim that Trump violated the law when he used pending foreign aid to extort Ukraine’s president into investigating a political opponent.

According to GAO, the Impoundment Control Act “does not permit the president to substitute his own policy priorities for those congress has enacted into law.”

According to Dershowitz, the Act “does not permit Congress to substitute its foreign policy preferences for those of the president.”

Where in the Constitution do we find the “allocation” Dershowitz refers to? He doesn’t say, for good reason: The actual Constitution, unlike the one in Dershowitz’s imagination, agrees with GAO.

The Constitution empowers Congress, not the president, to “regulate commerce with foreign Nations.”

The Constitution empowers Congress, not the president, to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

The Constitution empowers Congress, not the president, to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

The Constitution empowers Congress, not the president, to  “provide for calling forth the Militia to … repel Invasions.”

The Constitution empowers the president to negotiate treaties — but those treaties require Senate ratification.

The Constitution empowers the president to appoint ambassadors and a Secretary of State — if the Senate approves of his choices.

The Constitution makes the president commander in chief of the armed forces, but only when they’re “called into the actual service of the United States” by Congress.

And the Constitution allows the president to spend money only “in Consequence of Appropriations made by Law.” That is, appropriations made by Congress, which the president may sign or may veto but may not “substitute his own policy priorities” for.

In Federalist 69, Alexander Hamilton — arguing for the Constitution’s adoption — cites most of the items above the president from a British-style monarch:

“The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.”

Dershowitz’s “legal argument” (he’s formally joined Trump’s defense team) is that the Constitution means the opposite of what it says and what its framers said they meant, and that Trump is king, not president, of the United States.

More articles by:

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

bernie-the-sandernistas-cover-344x550
February 24, 2020
Stephen Corry
New Deal for Nature: Paying the Emperor to Fence the Wind
M. K. Bhadrakumar
How India’s Modi is Playing on Trump’s Ego to His Advantage
Jennifer Matsui
Tycoon Battle-Bots Battle Bernie
Robert Fisk
There’s Little Chance for Change in Lebanon, Except for More Suffering
Rob Wallace
Connecting the Coronavirus to Agriculture
Bill Spence
Burning the Future: the Growing Anger of Young Australians
Eleanor Eagan
As the Primary Race Heats Up, Candidates Forget Principled Campaign Finance Stands
Binoy Kampmark
The Priorities of General Motors: Ditching Holden
George Wuerthner
Trojan Horse Timber Sales on the Bitterroot
Rick Meis
Public Lands “Collaboration” is Lousy Management
David Swanson
Bloomberg Has Spent Enough to Give a Nickel to Every Person Whose Life He’s Ever Damaged
Peter Cohen
What Tomorrow May Bring: Politics of the People
Peter Harrison
Is It as Impossible to Build Jerusalem as It is to Escape Babylon?
Weekend Edition
February 21, 2020
Friday - Sunday
Anthony DiMaggio
Election Con 2020: Exposing Trump’s Deception on the Opioid Epidemic
Joshua Frank
Bloomberg is a Climate Change Con Man
Jeffrey St. Clair
Roaming Charges: Billion Dollar Babies
Paul Street
More Real-Time Reflections from Your Friendly South Loop Marxist
Jonathan Latham
Extensive Chemical Safety Fraud Uncovered at German Testing Laboratory
Ramzy Baroud
‘The Donald Trump I know’: Abbas’ UN Speech and the Breakdown of Palestinian Politics
Martha Rosenberg
A Trump Sentence Commutation Attorneys Generals Liked
Ted Rall
Bernie Should Own the Socialist Label
Louis Proyect
Encountering Malcolm X
Kathleen Wallace
The Debate Question That Really Mattered
Jonathan Cook
UN List of Firms Aiding Israel’s Settlements was Dead on Arrival
George Wuerthner
‘Extremists,’ Not Collaborators, Have Kept Wilderness Whole
Colin Todhunter
Apocalypse Now! Insects, Pesticide and a Public Health Crisis  
Stephen Reyna
A Paradoxical Colonel: He Doesn’t Know What He is Talking About, Because He Knows What He is Talking About.
Evaggelos Vallianatos
A New Solar Power Deal From California
Richard Moser
One Winning Way to Build the Peace Movement and One Losing Way
Laiken Jordahl
Trump’s Wall is Destroying the Environment We Worked to Protect
Walden Bello
Duterte Does the Right Thing for a Change
Jefferson Morley
On JFK, Tulsi Gabbard Keeps Very Respectable Company
Vijay Prashad
Standing Up for Left Literature: In India, It Can Cost You Your Life
Gary Leupp
Bloomberg Versus Bernie: The Upcoming Battle?
Ron Jacobs
The Young Lords: Luchadores Para La Gente
Richard Klin
Loss Leaders
Gaither Stewart
Roma: How Romans Differ From Europeans
Kerron Ó Luain
The Soviet Century
Mike Garrity
We Can Fireproof Homes But Not Forests
Fred Baumgarten
Gaslighting Bernie and His Supporters
Joseph Essertier
Our First Amendment or Our Empire, But Not Both
Peter Linebaugh
A Story for the Anthropocene
Danny Sjursen
Where Have You Gone Smedley Butler?
Jill Richardson
A Broken Promise to Teachers and Nonprofit Workers
Binoy Kampmark
“Leave Our Bloke Alone”: A Little Mission for Julian Assange
FacebookTwitterRedditEmail