What’s likely not surprising to many supporters of strict, constitutional government is that presidents from both political parties have been taking far more power into their hands than the founders and ratifiers had authorized in the Constitution.

What’s been missing, though, is a serious, academic piece of research to support the idea that Article II of the Constitution is NOT a sweeping grant of power. Until now, that is.

Leading Constitutional Expert and regular Tenth Amendment Center contributor, Rob Natelson, has a new scholarly article on this very subject which was reported on by Vision, at the University of Montana.

Here’s an excerpt:

While researching the historical facts surrounding the decision, Natelson stumbled upon documents that helped to answer a larger question: Did President Bush have the ability to set up tribunals in the first place? What is the executive power of the president of the United States? Does the first sentence of Article II of the Constitution convey a broad, undefined mass of executive power?

“I came up with a rather clear answer,” Natelson says. In an article to be published soon in the Whittier Law Review, Natelson expands on his conclusion.

“Lawyers are creatures of habit,” he says. “They tend to draft documents according to certain patterns or formulas.”

Natelson checked numerous 18th-century documents that, like Article II, granted enumerated powers. His goal was to find drafting patterns to see what interpretation of Article II fit those patterns.

Natelson found that legal documents frequently include a passage near the beginning that merely identifies the person to whom the document grants powers. Further down the document lists those powers. But insofar as he could find, the documents almost never began with a general grant of broad, unidentified authority, then address other matters before returning to enumerate specific powers.

“What this suggests is that the first sentence of Article II is not a broad grant of kingly executive authority,” he says. “The sentence merely tells the reader that the title of the chief executive will be the president of the United States – nothing more.”

In other words, Presidents Bush, Truman and Roosevelt were wrong when they asserted that Article II granted them powers other than those listed elsewhere in the Constitution.

Michael Boldin

The 10th Amendment

“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.”



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