Constitution Alive, Segment Six, Part Three: The Executive Branch: What are the proper powers of the Presidency? When should true recess appointments take place? What should constitutional executive orders actually do? What can we do to get the office of the president back in its proper place, functioning as the Constitution specifies? Tune in to hear some surprising, important lessons you need to know to help maintain our freedom!

Air Date: 09/02/2020

On-air Personalities: David Barton, Rick Green, and Tim Barton

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Transcription note: As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture

Rick:

Welcome to the intersection of faith and politics! This is WallBuilders Live with David Barton and Rick Green. Thank you for joining us today. You’re actually joining us in the middle of a four-part series from Constitution Alive, and it’s on the presidency. So if you missed the last couple of days, I encourage you to visit WallBuildersLive.com. Just click on the archives section and you can listen to those last two programs.

Today we’re going to pick up right where we left off yesterday, and just to set the context for you if you are tuning in for the first time, this is part of the Constitution Alive program. More information can be found out at ConstitutionAlive.com. That’s the quick start guide to the Constitution that David Barton and I’ve done for you. It’s a chance to walk through the entire Constitution, every article, every amendment, and study the original intent of what the Founding Fathers intended for us with the Constitution and how to properly restore that constitution.

Let’s pick up right where we left off yesterday. We’ve been talking about the presidency on Constitution Alive.

Remember what we said about consent of the governed? The only just power of government comes from us?

So if we will talk about the oath, I think it’s a great idea to take the oath of office and give it to a candidate, and say, “I want you to tell me how I’m going to know if you’re upholding this oath,” so that they’ll begin to think about it before they even get it in there.

Reading the Constitution in Congress

I think most people that run for office today, they want to uphold the oath. They want to do a good job. Sometimes we think the worst of everybody just because they’re running for office. I get to visit with a lot of people that are in office or running for office, and most of them want to do a good job. A lot of times they end up voting the things that I would argue are unconstitutional just because they don’t know. So we’re doing the most important part right now. We’re getting educated, now it’s our job to go back and help get them educated, and choose leaders that will take that oath seriously.

Yes ma’am?

Audience Member:

January 3rd, 2011. They read the Constitution. Why?

Rick:

It was great. In fact, she’s talking about the opening of the congressional session in 2011. We actually help with make making this happen. We were pushing for a little bit more stringent rules for the House.

Whenever the new leadership came into the house, we wanted them to require—and actually did require—a constitutional provision to be pointed out in every bill that was offered in the legislature. You had to say where in the Constitution you had the power as a member of Congress to offer this piece of legislation, which we thought was great, and I think is a very bold step in the right direction.

Removing Loopholes

What we wanted though was for all those loopholes we talked about last night to be excluded. We actually had, in the drafts that we gave to the speaker’s office,we said, “You should exclude Necessary and Proper Clause, Commerce Clause, and General Welfare, and not let them use those loopholes.”

As you know, most of the time when somebody turns in their bill they’re going to have, “Welfare gives me the power to do this.”

But as a part of those new rules that they adopted, they did the reading of the Constitution from the House floor.

Moment From American History

This is David Barton with another moment from America’s history. Although education has remained an emphasis in America for nearly 200 years. What has changed the most over that period of time is the philosophy of education. For example, while religion finds no place of refuge in our schools today, such was not the case at the time of our founding fathers.

In fact, when the Delaware Indian chiefs brought their youth to be trained in America schools on June the 12th 1779, George Washington told them, “You do well to wish to learn our arts and our way of life and above all the religion of Jesus Christ. These will make you a greater and happier people than you are. Congress will do everything they can to assist you in this wise intention.”

According to George Washington, what students learned above all in American education at the time of the Founding Fathers was the religion of Jesus Christ. For more information on God’s hand in American history contact WallBuilders at 1-800-8-REBUILD.

An Opportunity for Debate

Rick:

They did the reading of the Constitution from the House floor, and it was so interesting. At first, a lot of the people that aren’t real pro Founding Fathers pro Constitution were objecting to all this is just for show.

But as soon as they said, “We’re gonna do it,” every member of Congress said, “I want to be part of that! I want to read!”

Because they knew that we the people, we love our Constitution. We love our founding fathers, and we wouldn’t have liked it if they just said they didn’t want to participate. It was a very positive thing. It started bringing awareness, I think, to those members of Congress and to the nation, that we are governed by that document.

That document is so important, every piece of legislation should have to abide by that document. I think it’s going to help to have that rule in there, because at least what it does is it requires a member to put their provision in the Constitution, and then if it’s a if it’s a weak provision like these loopholes at least it opens the door for other members of Congress to debate that with them and to raise it.

You’ve got a pretty large constitutional caucus now in Congress that really wants to adhere to that strict constructionist viewpoint, and they’re starting to educate their colleagues. So it’s a long process.

But that was a huge step in the right direction. I’m glad you raised it up. I think it was a very, very positive thing.

Yes sir?

Is America Heading Towards Democracy?

Audience Member:

Going back to that national popular vote and the pure democracy part, it seems as if we went to that, we would in essence be a pure democracy and not a republic, and Article 4 Section 4 will be a lot call it happens in Article 4 Section 4?

Rick:

Yeah, it would be a lot closer. I don’t think we would be a pure democracy yet because you still have the congressional side of things. But it yeah. There’s not much left. Actually, you’re probably right, because now that we don’t choose our Senators through the state legislature, we’ve gone to that almost pure democracy. Now, a pure democracy would be where we would be voting on every issue. We wouldn’t even have those representatives.

I think of it as a sliding scale from between democracy and republic. We got rid of election of senators through the legislature, we moved a little bit closer to democracy. You get rid of the Electoral College, you move a lot closer to democracy. So it’s definitely a step in the wrong direction.

Audience Member:

I was going to ask, going back to the oath, if they go ahead and they vote, and they’re not following their oath at all, what should take place?

Vote In People Who Share Your View

Rick:

The challenge is that, because we’re so uneducated today in America about what the Constitution is all about, and what the oath really stands for, and whether or not something they’re doing is unconstitutional, they’re gonna make what it sounds like a sound argument to most people that what they’re doing is not a violation of their oath. So it’s gonna be a debate over whether or not they’ve upheld the Constitution, and it is probably a losing debate.

So it’s hard.

It’s better for us to choose people that share our view. You want to vote for someone that shares your view of the Constitution so that their view of the oath is the same as what your view is that makes sense.

I think they’re going to negate our argument that they have violated their oath by not upholding the Constitution, which in some cases it’s pretty easy. We have a lot of politicians today, you’ve got the soundbites where they say, “Constitution? What does that matter? Why should I take the Constitution into consideration on this?”

So that’s a pretty obvious one that you ought to be able to say, “Well, you’re now violating your oath because you’re oath requires you to uphold the Constitution. But most times they’re not foolish enough to actually say that. They just take actions that don’t reflect that they respect the Constitution.

Alright. Let’s jump over to the 25th Amendment. So we’ve got two sections out here that I want to point out.

One is the opportunity for the President to say, “I cannot fulfill the duties,” and so they pass the torch to the Vice President and invoke the 25th. The President chooses to invoke the 25th.

Section 4 of the 25th Amendment

That’s Section 3 of the 25th Amendment. Section 4 is when the Vice President and the Cabinet invoke the 25th. So they have to decide that they think the President is incapacitated, cannot fulfill the duties, and they have to vote to do that. Now, speaking to Section 4 and the Cabinet and the Vice President choosing to do that, who can tell me when was the first time in the United States that the 25th was invoked under Section 4 where the Vice President and the Cabinet did that?

Who might remember when that was? Just guess. Just throw out names.

Audience:

Lincoln?

Rick:

No.

Audience:

Wilson?

Reagan?

Bush?

Rick:

No.

Audience:

1963?

Rick:

1963, so would have been when Kennedy was shot? These are good guesses though. OK. I’m just going to give it to you. It’s actually President David Palmer in Season 2 of 24.

That was the that was the first time.

And and you remember what happened. See, the Vice President didn’t like what he was doing and so he got half the Cabinet to vote with him. Then there was a big debate over whether one of the members of the Cabinet had already resigned, and that changed the vote because—it was such a great episode.

And you know why it was so great? Because it educated us on the 25th Amendment, and did a great job of actually doing it. They actually got the 25th Amendment out and they read it on the show. It was fantastic.

But it did happen again, actually. It happened in Season 4 with President Logan.

That was the next time. President Logan, the slimiest President in American history. I’m telling you, if you watch 24 at all.

This guy was awful.

The 25th Throughout History

So it gets invoked in season 4. And then again in season 6, the third time, when Wayne Palmer was President United States. The thing blew up next to his podium and he got injured and they invoked it anyway so all those were the three times that it was invoked and—say that again?

Audience:

Air Force One.

Rick:

Oh! And the movie Air Force One. That’s another good one. That’s right. Forgot about that one.

OK, so here in the real world it’s never happened. it came close. Reagan that was the closest we ever came it.

Bush, George H.W., was actually on his way back to D.C..

When Reagan got shot, this is 81, he gets shot. He’s already in surgery. Bush is on his way to Texas. They get word to him and they turned the plane around. They head back to DC.

When he lands in DC they tell him Reagan is only going to be out for another hour—only under anesthesia for another hour.

I thought Bush did a very statesmanlike thing. He had a big press conference and he said, “We are not invoking the 25th. The President’s gonna be fine. America’s gonna be fine.”

He calmed everybody down, calmed America down, calmed the reporters down, calmed the world down, calm the chaos back in the Situation Room down—and we won’t get into all that—but fortunately the 25th was not invoked. He certainly could have. It would have been a legitimate time to do it, but I think he was wise in making the decision that he made. It just kept everybody cool and ended it.

Section 3

So let’s talk about Section 3. Section 3 is when the President invokes the 25th Amendment and says, “I’m incapacitated, I’m gonna be incapacitated, can’t fulfill the job.”

Who can tell me the first time that happened in U.S. history?

Come on. Just yes you just have fun.

Audience:

Clinton?

Rick:

No.

Audience:

The movie Dave?

Rick:

That’s a good guess!

That’s actually true. See, now I was thinking actually of President Bartlet and West Wing in the fifth season. He actually had to hand it over and invoke the 25th.

What was cool about this episode was you had a Democrat President, a Republican Speaker, and no Vice President. The Vice President had resigned.

So the Democrat President had to hand the reins over to a Republican Speaker of the House who was going to give up his speakership to take over the reins.

What happened was his daughter was kidnapped by radical Islamic terrorists, and President Bartlet was ready to blow up the entire Middle East.

He said, “I can’t do this. I’ve got to step aside.”

This Republican—John Goodman played the Speaker, and I’m forgetting his name”€¦. Martin Sheen. So Martin Sheen is the is the President.

He hands the reins over to John Goodman, and John Goodman takes it and gets the job done. Then he hands it back.

I just thought it was a great—again, a statesman like episode. Sometimes Hollywood gets it right. I thought Aaron Sorkin and those guys did a great job on West Wing and in teaching us about the 25th—almost as good as the 24 producers did.

So I like to use Hollywood because it’s a good example, but this actually did happen in America three times. We’ve had the 25th Amendment invoked, it was all in the last—

The Time Dick Cheney was Acting President

Audience:

Bush 1?

Rick:

Bush 1 was not one of them, but close. Reagan was first. He went under for two hours, had a colon colonoscopy. He invoked the 25th for those two hours.

Then Bush actually twice had colonoscopy and invoke the 25th. So for about two hours each time Darth Vader was President of the United States. Imagine that.

And I like Dick Cheney and I like Darth Vader. So you know, if Dick Cheney had just breathed like Darth Vader once in a while it would’ve been even better.

But I just think that’s interesting in the 25th Amendment. So that’s that’s kind of how it works.

Avalon Project 

Tim:

Hey, guys, this is Tim Barton with WallBuilders. I know you hear my dad and Rick talk a lot about our Founding Fathers about the original intent of our nation, a constitutional heritage that we have. And, really we’ve seen how far we slipped away from that. And, I know a lot of us as we hear my dad and Rick talk think, “I wish there was a place that I could go where I could see these documents and I could read and learn about the Founding Fathers firsthand.  See the things they did.”

I want to give you some websites today that can help you accomplish that very thing. If you get online you can go to places like Library of Congress and you can look under their century of lawmaking or historical documents. You can go to the Avalon Project, to the Founders Constitution, Google Books, or even the internet archives. Â

Or you can just go to WallBuilders.com. We have a section for our WallBuilders Library. And, under that section we have different subgroups for historical documents, historical writings, even a place where you can get helpful links to find out more information about other websites.  Where you can do the research for yourself and find the truth for yourself. Friends, this is the time that we need to know who we are and where we came from. WallBuilders.com is a great place to go.

Jumping to Article 2, Section 2

Rick:

Those were great examples of how our system is designed so well that our governments not going to fall apart if one person is assassinated, or if one person dies or is taken out, our system is very well designed to not allow that to destroy the nation.

Alright, let’s jump forward. We’re going to jump into Article 2, Section 2, Paragraph 4, dealing with recess appointments. This is what a lot of people have been asking about, not just with President Obama, but President Bush, for a long time.

Both parties have used recess appointments, and I think abused them. Both parties do it too often.

The concept for the Founding Fathers was very different than what we do today. Page 26, right in the middle of the page, “The President shall have power to fill up all Vacancies that may happen during the recess of the Senate.”

Now, let’s think about that for a second.

Recess, when these guys were in charge, was not a weekend pass. They weren’t just flying home for the weekend and coming back, recess for these guys was a long time. Think about the travel and what it was like for them back then. In fact, even the whole concept of how much time you spent in Washington D.C. is very different for them than it is for us.

I love Article 1, Section 4, on page 8, Article 1, Section 4, paragraph 2.

“The Congress shall assemble at least once in every year.”

We’re lucky to get them to come home for once every year, right? Totally different back then. These guys said, “Hey, we’re gonna go to DC, get our business done, and come back home.”

Recess, Then and Now

They didn’t want to live in DC. They don’t want to be there all the time. So you might have had a two year Congress with these guys coming home for ten to twelve months at a time.

That’s a long recess!

You can imagine that, in a critical position, if that person dies, or resigns, or whatever, you need that release valve, the power in the Executive Branch, to fill that vacancy for that long recess.

That makes perfect sense. I think these guys were entirely correct in putting that in our Constitution.

But today what do we do? Congress goes home for the weekend, and we make recess appointments on the way, and you know what’s really bad?

Again, both parties doing it.

A lot of times they’ll take somebody they’ve appointed that the Senator is refusing to approve, so you’ve got a languishing appointment sitting there, Senate goes home, the President goes, “Oh, while they’re going home I’m going to push this guy through.” That’s not what these guys had in mind for a recess appointment!

It was designed to take care of an emergency situation, not to sneak through an appointment that you couldn’t actually get the consent from the Senate for!

So it’s a real problem, again, abused by both sides.

I think we’ve just got to—even if it’s your guy you supported, and you like in the White House, and you like the appointment that’s languishing in the Senate—you should still be willing to say, “I don’t support that recess appointment because it violates the process.”

Senatorial Approval and Presidential Appointment

The process has got to, again, become important to us. It’s not good for us to abuse the process just because we’re getting the end that we want. The end doesn’t justify the means. That’s not the right way to play this game and govern the country. So recess appointments are a real problem.

Yes, sir?

Audience:

I’m sure you’re aware that the Congress just passed a law that eliminated about 160 ratification processes by the Senate.

So, in other words, the President can appoint these people without ratification. Have you heard about that?

Rick:

No, I’m not aware.

Audience:

It’s about 160 different appointments that passed the House.

Rick:

Did it pass the Senate? Is done?

Audience:

I think it is. I’m not sure, but it’s in effect. I don’t know if it was a resolution, that was all it takes.

Rick:

In my opinion we’re headed in the wrong direction.

There’s a proper place for appointments that don’t require approval. Let’s take a look at where we were on page 26. If you if you jump a little bit more on that on that page, right above there, it talks about the advice and consent in the second paragraph.

“He has the power by and with the advice and consent of the Senate to make treaties, provided two thirds of the Senators present are concurrent. He shall nominate and by and with the advice and consent of the Senate shall appoint…”

And then it goes through the long list of folks that he appoints. But then the next paragraph says but the Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law or the heads of departments.

A Delicate Set of Balances

So that’s a proper constitutional function for the Congress to pass that law, but the more we do that the more we’re empowering the Executive to go run all of these agencies with less and less accountability back to the Congress.

In my opinion, that’s going the wrong direction. We have that separation of powers, those checks and balances, for a reason. I don’t want the president to have any more power in terms of appointing folks that don’t have to get some advice and consent. But then again, these may be some low-level positions that they’ve decided—Congress has decided—it takes too long to get to go through the process.

Just based on theory, I’m with you. I think that’s a bad idea. But, they do have—the president does that—A lot of people ask me what about these czars.

“Does he have the right to appoint these czars?”

It seems like we’ve got more czars in the Soviet Union ever had at this point.

He does actually have the power to make some of these appointments that are within an agency that was created by law. So Congress creates an agency, and then the President has to go enforce and execute the law.

If there’s appointments within it that don’t require Senate approval, he can do that in column czars or whatever, but if Congress doesn’t like what he’s doing they can rein him back in by defunding that position or passing a law that says, “You can’t have an appointed position in that way.”

Too Afraid to Fight

So it’s kind of a give and take, back and forth, we’ve got to remember that’s what the checks and balances are all about, what our challenge today is most often. The Executive branch and the Legislative branch are not willing to take on the other branches. Everybody just seems to lay down because they are afraid of a fight, and look bad in the media, and all that kind of stuff.

What happens is, in the long run, the Constitution loses because either the President loses a legitimate power because the courts pushed on him, or the Congress loses a legitimate power because the courts pushed on them and the President pushed on them. It’s really important any time a branch is encroached upon by another branch—we’ll see quote a little later by Hamilton on this—for the branch that’s being encroached upon to push back to protect their constitutional authority.

It’s a duty on their part not for the person that’s in the position, but for the office itself so that the Constitution continues to work the way that these guys designed it to work. So that appointment process is a big part of that, and having the Senate be a piece of that puzzle. So the recess appointments is a big question. I do want to point out though that we did have the President make a lot of recess appointments recently when the Senate said that they were not in recess, and that the House said the Senate was not in recess.

Constitution Alive

Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know. But, it gets frustrating because you don’t know where to look for truth about the Constitution either.

Well, we’ve got a special program for you available now called Constitution Alive with David Barton and Rick Green. It’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the Cradle of Liberty and Independence Hall and to the WallBuilders’ library where David Barton brings the history to life to teach the original intent of our Founding Fathers.

We call it the QuickStart guide to the Constitution because in just a few hours through these videos you will learn the Citizen’s Guide to America’s Constitution.  You’ll learn what you need to do to help save our Constitutional Republic. It’s fun! It’s entertaining! And, it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now at WallBuilders.com.

Unconstitutional Appointments

Rick:

There was a great article. Ed Meese from Heritage Foundation, former Attorney General, did a great article on this and he pointed out something that I had actually forgotten about.

He said, “You know, for the President to make these appointments—“

You remember what happened. The Senate was gone for three days, and they had something, a process that would kick in so that they were not in recess.

They were purposely not wanting to be in recess because they didn’t want any appointments to take place.

The President appointed a bunch of folks, and it was a Labor Relations Board, I think some judges—I forgot who all got appointed. But there’s actually a provision here that Ed Meese pointed out that I had completely forgotten about.

It’s back on page 10. It’s in Article 1, Section 5, on page 10. Right towards the top, third paragraph from the top.

It says, “Neither House during the session of Congress shall, without the consent of the other, adjourn for more than three days nor to any other place than that in which the two houses shall be sitting.”

He pointed out that the House had not given permission for the Senate to adjourn to recess for that amount of time. So he had a bunch of other stuff in the article as well that backed up the fact that these were unconstitutional recess appointments.

Again, I’m not just picking on our current president. I think all presidents over the last few decades have abused this. I think our current presidents gone further than any of the others.

A Recess VS a Break

But the point is recess means something. A recess appointment was a specific idea, an important idea, that these guys put in place, and we don’t want to lose it.

We want the president to have that power. The more a president abuses that power, the more likely Congress is going to—sooner or later we the people are gonna take it away. So it’s just a bad deal. The way we fix it is for we the people to get educated and start electing leaders that will actually follow that.

Executive orders is also one that’s been raised a lot lately.

The idea of executive orders that’s not actually provision specific in the Constitution that says that the president has the power to execute orders, but where it comes from is Article 2, Section 3, Paragraph 3, and that’s going to be page 26 and 27 in your book.

And it’s this phrase, “He shall take Care that the Laws be faithfully executed.”

Over time, beginning with Washington, you started having executive orders from the President to make sure that the laws were faithfully executed.

That’s all the time we have for today folks. That was part three out of a four part series from Constitution Alive this week that we’re sharing with you. Yesterday and the day before we had part one and part two, today part three, tomorrow we’ll get the conclusion.

More Constitution Alive at WallBuilders.com!

Now, if you happen to tune in in the middle of today’s program, what you’ve been listening to our program’s called WallBuilders Live with David Barton Rick Green. But what you’ve been listening to today is Constitution Alive. This is our chance to share with you the principles of the Constitution, walk through every article, every amendment, and give you a chance to get sort of a crash course in those founding principles and then apply them and be part of restoring our Constitutional Republic.

So what we’ve been sharing this week is Section Six out of Constitution Alive. It’s the part of Constitutional Alive that deals with the presidency.

Tomorrow we will get the conclusion, so don’t miss tomorrow if you want to get those first two parts in today and sharing with your friends and family. Go do that right now by grabbing those links at WallBuildersLive.com.

You’ve been listening to WallBuilders Live with David Barton and Rick Green.