The modern day Executive Branch consists of the President, Vice President and all the cabinet members who advise the President on foreign affairs, national security, military issues, judicial issues, education, health and welfare, agricultural issues, national parks and forests, commerce, and environment issues.

Once the President appoints the cabinet members, they must be approved by the United States Senate. Each of the cabinet members appoints lower level undersecretaries who work under them to carry out the will of the President. Today, these departments have become so large; many require their own buildings to house all their employees. These employees are all a part of the huge government bureaucracy that continues from administration to administration. Except for the political appointees that change from administration to administration, these are lifetime jobs with little chance of getting fired or laid off since government never shrinks. In many instances, these government employees have their own agendas that do not particularly agree with that of the President.

The State Department is a prime example of this. They resist most presidents’ agendas, and have been known to leak information to discredit and undermine the President’s stance on the issues as well as his goals. Each department has hundreds of regulations that they enforce on the American people. Therefore, in addition to all our laws, there are hundreds of government regulations and fees (taxes) by which the populace must abide.

Some of these regulations are passed by law through Congress. However, some are put into place by the administration when Congress can’t get it accomplished by passing the necessary legislation. One example of this is the energy tax/cap and trade legislation that is having trouble making its way through the Congressional approval process.

For example: the current administration has asked the Energy Department to set into place new regulations to essentially do what the Cap and Trade Bill would do, however the public is not able to voice their opinions or comments on the matter. Cap and Trade never made it through the legislative process because it is so radical and would harm the economy. These agencies can be driven by extremist viewpoints and resent being slowed down or hindered by “We the People”. The Framers of the Constitution would be shocked at this over reach of executive power.

When there are vacancies for federal judges at any level, the President has the authority to nominate qualified judges to fill those vacancies. As a check and balance, the Senate is charged with approving the nominee by a “simple majority floor vote” (advice and consent). A list of names is submitted to the Senate Judiciary Committee for consideration. This committee is charged with certifying that the person nominated is qualified. Once qualification is granted, the name of that person is submitted to the floor for an up or down vote. Until recent years, Presidents’ nominees have been appointed readily with very few being rejected.

Sadly, today this process is often corrupted by politics and ideology; so at times, good qualified judges are not being sent to the floor for a vote or some choose not to put themselves and their families through this sometimes personally destructive process. Therefore, there are more vacancies on the federal bench than ever before. A qualified judicial candidate is one that is rated by the American Bar Association as qualified, has the required degrees and demonstrates understanding of Constitutional law. Each President has their own judicial philosophy and looks for judges who will uphold that philosophy.

In today’s political climate, the use or threat of a filibuster has become more common in Congress. Using the filibuster in this way (advise and consent) is an unconstitutional abuse of the process (filibusters were never intended for this purpose), which then forces the nominee to attain sixty votes in order to be approved. The Constitution only requires a simple majority of the 100 U.S. Senators.

The President is allowed by the Constitution to make appointments during Congressional recesses. Sadly, sometimes a recess appointment is the only way a President can get his qualified nominees into office. The President is also allowed to enact Executive Orders as needed. Some argue that this gives the President too much power. The Constitution is vague on the use of these Executive Orders (EO), so it has been up to each President to decide how much or little to use this privilege. Most presidents have been frugal in their use of this privilege because abusing it could give undo power to the Presidency that the founders never intended. This abuse could lead to excessive Presidential power circumventing the Legislative process. At this writing, President Obama is about average in his use of Executive Orders but the type of orders he is issuing bypasses Congress and the Judiciary.  This behavior sets precedent and destroys the concept of separation of powers throwing us into a Constitutional crisis.

Lastly, the President is the Commander-in-Chief of the military during times of war, but he cannot declare war. Only Congress can declare war and authorize funding of war. Since WWII, we have not declared war on any nation. Korea, Vietnam, Gulf War I, Bosnia, and the Iraq War are considered military conflicts. Due to political concerns, declarations of war are almost impossible to attain from Congress.

Next Week: We look at Article III – The Judiciary

Questions for discussion: What concerns you most about the Executive Branch’s power in present day America?