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Inherent Presidential Power Is Always Subject To The Inherent Congressional Powers To Make The Laws And Enforce Oversight Of The Executive Branch, Even In Time Of War

By Rev. Bill McGinnis, Director - Internet Church Of Christ -
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"Congress makes the laws. The President faithfully executes the laws. The Supreme Court interprets the laws." This is how it is now, and always has been, under our Constitution. Nothing about this changes in time of war.

Some misguided people have recently been asserting that the President has some kind of "inherent authority" or "inherent powers" which allow him to ignore or over-ride or supercede a duly-enacted law passed by Congress. This claim is total nonsense and should quickly be dismissed as a mere pseudo-legal trick by the Bush administration and their agents in Congress to deceive the People once again. All members of Congress should be outraged at this blatant Executive Power Grab, as should all other Patriotic Americans, Conservatives and Liberals alike.

The Supreme Court ruled decisively on this exact subject in the early days of our Country, when the Founders' intentions were fresh and clear in people's minds. The case is named LITTLE v. BARREME, and you can read it here:

LITTLE v. BARREME, 6 U.S. 170 (1804):

And this powerful and important decision has never been overturned, and has stood as precedent since 1804 up until the present day. Far from being some kind of irrelevant old decision, that may have subsequently been over-ruled, it is as strong and important today as it ever has been.

The question in this case involved the President giving orders which contradicted an Act of Congress, regarding a military action in a time of semi-declared war. And the Supreme Court ruled that the President's actions were illegal, because they violated an Act of Congress.

In the case "LITTLE v. BARREME," The Supreme Court in 1804 ruled unanimously that a part of President John Adams' instructions to seize ships was in conflict with an act of Congress and therefore illegal. Congress had passed a law instructing the President to seize certain ships going to France. But the instructions issued to the Navy by President Adams changed that to include certain ships that were either going to or coming from France. A ship was seized coming from France. So the seizure followed the Presidential order, but violated the Law passed by Congress, which only involved ships going to France. On appeal, the case came before the Supreme Court.

Chief Justice Marshall wrote, "On an appeal to the circuit court this sentence was reversed, because the Flying Fish was on a voyage from, not to, a French port, and was therefore, had she even been an American vessel, not liable to capture on the high seas."

And by writing this, Chief Justice Marshall provides us today with the answer to a question which was never even asked when the Founders wrote the Constitution, because it was obvious to everybody then that Acts of Congress were more authoritative than anything the President might want to do. Congress makes the laws, the President faithfully executes them. And if he fails to do so, Congress can remove him from office.

One scholar described the case like this: "But Chief Justice Marshall wrote that even in his capacity as commander in chief, the president could not authorize a military officer to perform illegal acts. Only Congress can make laws, Marshall argued, and regardless of the fact that the president may have ordered his subordinate officer to perform an illegal act, that act was still illegal, and the officer performing that act was responsible for his behavior. Not even a military officer, Marshall wrote, could use the 'instruction of the executive' as an excuse for performing an illegal act."


The Justice Department has mischaracterized the nature of the Little v. Barreme decision, when it incorrectly said that the basis for this decision was that the President had "gone beyond the terms of the statute," and thus had merely over-reached his authority.

The exact words of the Justice Department are, "The Supreme Court held that the orders given by the President could not authorize a seizure beyond the terms of the statute and therefore that the seizure of the ship not in fact bound to a French port was unlawful. See 6 U.S. at 177-78"


This incorrect explanation is based either on a misreading of the decision or deliberate willingness to mislead the casual reader, because the decision itself clearly states that the basis for the decision against the President was that he had violated the statute, by ignoring a specific limitation on his authority, not merely over-reached it, by "going beyond its terms."

Marshall wrote, "But when it is observed that the general clause of the first section of the 'act, which declares that such vessels may be seized, and may be prosecuted in any district or circuit court, which shall be holden within or for the district where the seizure shall be made,' obviously contemplates a seizure within the United States; and that the fifth section gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed [6 U.S. 170, 178] that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port."

Thus we see that that basis of deciding LITTLE v. BARREME was that the President had ignored a specific limitation on his authority, not that he had merely over-reached it.

These observations lead us to this obvious conclusion: In the absence of a Congressional limitation, the Executive may exercise reasonable use of his Inherent Powers as head of the Executive Branch and Commander-in-Chief of the Military. But Congress may impose upon the President whatever limitations it may choose, under its Inherent Powers to enact all Federal laws.

Legislative power always supercedes Executive power. The tail must not wag the dog. If you doubt this, please re-read the Constitution at

Blessings to you. May God help us all. And may God bless America!

Rev. Bill McGinnis, Director
http://www.Internet Church Of Christ -

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