The President And The Rule Of Law: Who Wins?

The rule of law is a fundamental principle of the United States Constitution, which applies to all persons, institutions, and entities, including the President. While the President has the power to veto or approve bills, enforce laws passed by Congress, and act as Commander-in-Chief, they are not exempt from the rule of law and can be held accountable for their actions. The Constitution outlines core values and the courts are responsible for interpreting its meaning and ensuring that the President's actions align with it. The rule of law exists to protect the collective good from individual wrongdoing, and the courts play a crucial role in maintaining this balance, even when it comes to the President.

The president can be indicted for criminal activity

The question of whether a sitting US president can be indicted for criminal activity has been a topic of much debate, with no clear consensus. While no sitting or former president has ever been indicted, there have been a few close calls.

Arguments Against Indictment

The US Department of Justice (DOJ) has maintained a policy since the 1970s that sitting presidents cannot be indicted as it would "unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions". This argument is based on the idea that the unique powers of the president mean that indicting them would prevent the Executive branch from fulfilling its obligations.

Additionally, some argue that allowing a sitting president to be imprisoned would be equivalent to impeachment, as they would be unable to perform their duties, thus allowing the judiciary to unconstitutionally usurp the power of Congress. The Constitution also states that the Senate can remove a president from office, implying that this must be done before they can be subject to criminal courts.

Arguments in Favour of Indictment

On the other hand, some argue that the lack of explicit provisions granting presidential immunity in the Constitution was intentional, ensuring that the president remains a citizen who cannot ignore the law. James Madison, for example, suggested that presidential immunities be considered, but the idea never gained traction, indicating that there was no support for broad presidential immunities.

Furthermore, allowing a president to avoid criminal charges until they are removed from office could lead to a situation where they commit further crimes or pardon themselves, creating an uncheckable president.

Supreme Court Rulings

While the Supreme Court has never directly ruled on the issue, it has come close. In the case of United States v. Nixon (1974), the Court stated that:

> "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."

Additionally, in the case of Nixon v. Fitzgerald, the Court held that private lawsuits against the president for their official acts would lead to distraction and distortion, as the president would be preoccupied with the lawsuit and might change official policies.

The indictment of a sitting or former president remains a complex and uncertain area of Constitutional law. While most legal experts support the possibility of indicting a former president, there is less consensus on the indictment of a sitting president due to concerns about the separation of powers and the potential impact on the functioning of the executive branch.

The president's powers are limited by the Constitution

The President of the United States is not above the law and their powers are limited by the Constitution. The U.S. Constitution is the nation's fundamental law, codifying the core values of the people. The Constitution gives the President the responsibility and duty to take care that the laws are faithfully executed. However, this does not equate to unlimited power.

The President can make treaties, veto and sign bills, represent the nation in talks with foreign countries, enforce laws passed by Congress, act as Commander-in-Chief during a war, call out troops to protect the nation, make suggestions about new laws, lead their political party, entertain foreign guests, recognise foreign countries, nominate Cabinet members and Supreme Court Justices (with Senate approval), appoint ambassadors, and talk directly to the people about problems.

However, the President cannot decide how federal money is spent, choose Cabinet members or Supreme Court Justices without Senate approval, or act illegally. The President is still bound by the rule of law and can be held accountable for their actions. The Constitution outlines that the President can be impeached for criminal activity, and Congress has a constitutional responsibility to hold the President accountable for any violations of the law.

The American democratic system is not solely based on majority rule. There are certain principles that are deemed so important that the majority has agreed not to interfere. For example, the Bill of Rights was passed to protect concepts such as freedom of religion, speech, equal treatment, and due process of law. The courts play an integral role in maintaining the rule of law, particularly when hearing the grievances of minority groups.

The president cannot be above the rule of law

The President of the United States is not a king and is not above the rule of law. The rule of law applies to all, including the president. The U.S. Constitution is the nation's fundamental law, and it codifies the core values of the people. Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress. The American democratic system is not always based upon simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For example, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

The rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, independently adjudicated, and consistent with international human rights principles. The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions. Equality before the law is an essential part of the American system of government. When a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

The rule of law imposes a constitutional duty on the President, as it does on every citizen, to obey the law. The President cannot traffic cocaine, sexually assault someone, or kill others around him. Those who believe the President is above the law, or who believe he cannot be indicted for criminal wrongdoing, must necessarily believe that he has a license to commit crimes with impunity. The rule of law exists to protect the collective good from the individual bad.

While the President has the constitutional power under Article II to oversee the executive branch to a certain extent, he does not have unlimited power. The Constitution gives the President the responsibility and duty to take care that the laws are faithfully executed. The President is the chief law enforcement officer, but this does not mean that he is above the law.

The president's ability to control the executive branch

The President of the United States is the head of the Executive Branch of the government and is responsible for implementing and enforcing the laws written by Congress. The President has the power to either sign legislation into law or veto bills passed by Congress. The Executive Branch also conducts diplomacy with other nations, and the President has the power to negotiate and sign treaties, which must be ratified by a two-thirds majority in the Senate.

The President is also the Commander-in-Chief of the armed forces and is responsible for appointing the heads of federal agencies, including the Cabinet. The Cabinet and independent federal agencies are responsible for the day-to-day enforcement and administration of federal laws. The President appoints the heads of more than 50 independent federal commissions, such as the Federal Reserve Board and the Securities and Exchange Commission, as well as federal judges, ambassadors, and other federal officials.

The President has the power to issue executive orders, which direct executive officers or clarify and help implement existing laws. The President also has the power to extend pardons and clemencies for federal crimes, except in cases of impeachment.

While the President has significant powers, there are also several responsibilities and constitutional requirements that come with the role. One such responsibility is to "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." This requirement is usually fulfilled through a State of the Union address given to a joint session of Congress each January, outlining the President's agenda for the coming year.

The Constitution also outlines specific qualifications for the Presidency, including the requirement that the President must be at least 35 years of age, be a natural-born citizen, and have lived in the United States for at least 14 years.

It is important to note that the President is not directly elected by the people but by the Electoral College, which consists of Electors from each state who cast votes for the President.

The president's role in enforcing laws passed by Congress

The Take Care Clause is considered a major source of presidential power, as it grants the President broad enforcement authority. However, it also serves as a limitation on that power, as it emphasises the executive's duty to faithfully execute the laws of Congress and not disregard them. The President is not solely responsible for ensuring the faithful execution of laws; they cannot personally supervise every executive department. Instead, they can assign responsibility to the heads of the various executive departments, and if these department heads fail to execute the laws faithfully, the President may remove them.

The President's role in enforcing laws also includes the power to pardon people who have committed federal offences against the United States, and the power to fill vacancies when the Senate is in recess. Additionally, the President can act as commander-in-chief of the armed forces, enter into treaties with foreign nations (subject to congressional approval), and appoint executive officers and other officials such as federal judges and the U.S. Attorney General.

The President's legislative role, as outlined in the first two clauses of Article II, Section 3, includes the duty to provide Congress with information on the "state of the union" and recommend measures for their consideration. The President also has the power to convene or adjourn the Houses of Congress in certain circumstances, such as on extraordinary occasions or in cases of disagreement between the Houses.

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