"Herein Granted": Two words in the US Constitution make all the difference in the Power of the Executive

Gotta admit I never really paid attention to the significance of the two words "herein granted" in Article 1 (Legislative Branch) but conspicuously absent in Articles 2 and 3 (Executive and Jusdicial Branches, respectively).

Source: Constitution Center

Turns out there were competing views on the extent of power the Constitution gives to a President.  Alexander Hamiltion and James Madison had dueling views on the matter of interpreting Sections 1 of Articles 1 and 2.

These excerpts are from HERE.  Up first Hamilton:

"""Hamilton and Madison.—Hamilton’s defense of President Washington’s issuance of a neutrality proclamation upon the outbreak ofwar between France and Great Britain contains not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II. Hamilton wrote: “The second article of the Constitution of the United States, section first, establishes this general proposition, that ‘the Executive Power shall be vested in a President of the United States of America.’ The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.” “The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used.

The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, ‘All legislative powers herein granted shall be vested in a Congress of the United States.’ In that which grants the executive power, the expressions are, ‘The executive power shall be vested in a President of the United States.’

The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”"""

Madison's response, which as I understand it, suggests that Hamilton's reading would bestow way more power on the Executive than intended:

"""Madison’s reply to Hamilton, in five closely reasoned articles, was almost exclusively directed to Hamilton’s development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison’s principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation’s neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. “Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”  The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III."""

An interesting court decision by Chief Justice Howard Taft put the distinctions in context and gave Hamilton's view a the benefit of the doubt.

The Myers Case.—However much the two arguments are still subject to dispute, Chief Justice Taft, himself a former President, appears in Myers v. United States 22 to have carried a majority of the Court with him in establishing the Hamiltonian conception as official doctrine. That case confirmed one reading of the “Decision of 1789” in holding the removal power to be constitutionally vested in the President.23 But its importance here lies in its interpretation of the first section of Article II. That language was read, with extensive quotation from Hamilton and from Madison on the removal power, as vesting all executive power in the President, the subsequent language** was read as merely particularizing some of this power, and consequently the powers vested in Congress were read as exceptions which must be strictly construed in favor of powers retained by the President. Myers remains the fountainhead of the latitudinarian constructionists of presidential power

 **By "subsequent language" it means the Sections in Article 2 that follow Section 1 enumerating some powers to be the province of the Executive Branch.

The above excerpts are from HERE.  I edited the excerpts in a variety of ways...

"Trump vs US" Supreme Court Case on Executive Immunity. Maybe a helpful visual?

Helps me to put a picture of what I see as the result of the Executive Immunity case recently decided by the Supreme Court (case decision HERE).

Here is the succinct summary of what the Supreme Court held:

Below are a couple of images I created to give students (or others interested in the issue) a nominal starting point to understand the result. I make no claims it is a perfect representation.  I think, for the most part, the logic of what is "held" written above is shown in the two images below.

The first one describes Executive authority BEFORE the case cited above.  Presidential authority is defined in Article 2 of the Constitution. The "fuzzy perimeters" of that power have been molded by historical events but have been expansionary in history and dictated by events (civil war, WW 1 and 2, 9/11, to name a few).

The second image below represents what I think happens with Executive Authority going forward.  It HAS to happen, right?

Executive power increases (White area).  The fuzzy "outer perimeter" (Roberts words) of what is acceptable within the Executive branch increases (Brownish area) and the level of criminality that an Executive can be held responsible for decreases (Red area).

It is this brownish area I think Chief Justice Roberts addresses with "And he is entitled to at least presumptive immunity from prosecution for all his official acts.".  Not defined before in any Supreme Court case and the contours of it remain "fuzzy" BUT no question is an enlargement of Executive Branch permissible acts or actions.

ACT Reading Test Stratgies. My nominal suggestions.

I do a little ACT tutoring.  I have watched just about every YouTube video on every ACT subject tested.  Everyone has their own take on how to approach each test, which leads to a wide variety of opinions.  

The Reading Test (and Science test), as opposed to the English and Math tests, seems to have fewer moving parts overall.  The English test has a million grammar and sentence structure rules and Math, well, you know...

Professional tutors (ain't me!) are split on how to approach the reading test.  Some say go to questions first, and some say read the passage first. Some say read and annotate in the margins first, some say that takes too much time.  What to do?

I honestly don't know of a specific "go-to" strategy.  Below I will post my suggestions. I think they are useful if one is not the greatest/fastest reader in the world.  I think these provide some structure on how to approach the reading passages.  

Use at your own risk!

Additional Tips:

Read the source information at the very beginning of the passage. Depending on the topic, there can be useful information about the passage overall. It is good to know where it is going to take you before you start skimming the questions.

Don't read in any detail the answer choices that are wordy overall.  A question that has just one or two-word answer choices is worth a skim just to get the overall feel for the question.

Yes, this prep work takes valuable time. I think the time you save in having the questions mapped out will be more than worth the upfront investment of time.  Plus, it may reduce some of the reading you have to do overall.  

ACT does not care about how you arrive at an answer, nor do they care if you liked the passage or not!

"The History of the Chevron Doctrine"--things you may not have known...

Two cases regarding the so-called "Chevron Doctrine", Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, were argued this week at the Supreme Court. 

This very short article helps explain the issues in the original case that established the doctrine.

In short, when a statute's (law) verbiage comes into question, a court uses a "2-step" process to decide the case:

The "two-step" refers to the two stages of the review process:

1. Determine whether Congress expressed clear intent on the specific issue at hand in the statute. If it did, the court simply applies that meaning. If it’s not clear, go on to Step 2.
2. If the statute is ambiguous, then the court defers to the agency's interpretation if it is "based on a permissible construction of the statute." This is the "Chevron deference" stage.

 Source: FindLaw

One side says the doctrine is necessary so government agencies, that employ professionals with expertise Congress does not have, can use existing statutory language to respond to challenges that are not explicit (but implied or through precedent) in the statute. 

The other side says it gives government agencies too much power to interpret statutes beyond what is in the text of those statutes. The meanings of statutes should be interpreted by the judicial branch, not "unelected bureaucrats" or the Executive branch.