Unitary presidency

Dear Readers, The United States Supreme Court’s 2024-25 term just started.  It might be its most memorable one.  We stand on the precipice of rewriting any constitutional restrictions on Presidential authority.

Louis XIV famously proclaimed, “L’État, c’est moi;” “I am the state.”  This was during the 17^th Century when nationalized kings were crowned in fiefdom power struggles with their fellow nobles.

This mind presaged the late 18^th-century revolt against entrenched power in the bloody French Revolution.  The guillotine claimed Louis XVI and Marie Antoinette, also claimed Maximillien Robespierre, the leftist architect of the Jacobin Revolt and leader of its sinister Committee of Public Safety.

On this continent, our own little revolt against our distant overlord started with a Declaration of Independence and a list of grievances premised on Enlightenment Age principles of basic human rights.  It ended with our beautiful Constitution, a legal contract between a government and its citizens.  Law ended what could have been Edmund Burke’s dystopian view of the world without a strong monarch as “solitary, poor, nasty, brutish, and short.”

Frankly, our Constitution needs mending.  The militia muskets defined in the 2^nd Amendment are dissimilar from the AK-47s of modern society.  A President modeled on George Washington, as a leader of the Continental Army, is not the same as a modern President with codes to unleash nuclear devastation.

Over the centuries, greased by Supreme Court decisions, the Presidency has ascended in power over Congress. Perhaps, this is an inevitable reaction to the march of world events.  Perhaps, fighting the World and Cold Wars demanded a more muscular President.  Perhaps, modern commerce demands an Executive Branch with almost unfettered regulatory power.

Our government is constructed on two (2) fundamental presumptions.  First, Congress and the People’s House are the ascendant in the tripartite power sharing created by the Founding Fathers.  Second, the 10^th Amendment guarantees that States have relevance and have at least coequal reserved sovereignty, as the federal government’s authority is limited to what is set forth in the Constitution.

We call our President the “Commander-in-Chief.”  Circa 1787, this meant commanding a rag-tag and ill-funded conscripts borrowed from state militias; today, this means having a large professional fighting force armed with sophisticated war-making weaponry of mass destruction.

To some degree, the Constitution restricts a President by requiring Congress to declare war.  We did not enter World War II when Pearl Harbor was bombed; it took Franklin Delano Roosevelt asking for a Declaration of War from the well of the House of Representatives.  9/11 did not start a war; the Iraq authorization from Congress did.

Over the years, Congress has added teeth to assert its authority of Presidential war-making authority.  Reconstruction wrought the “Posse Comitatus Act,” preventing the domestic use of our military except in the case of insurrection.  In the wake of Vietnam, Congress passed the “War Powers Act,” requiring a President to report to Congress about military conflict activation in order to authorize future engagement.

We are at an inflection point.  President Trump campaigned on a variety of promises premised on an almost Monarchical approach to government.  He is keeping these promises at a terrifying pace.

President Trump is aggressively pursuing a legal theory of the Unitary President.  Thus, he can ignore Congressional restrictions like the two (2) acts, something called the “Impoundment Act” (the President has to spend what Congress authorizes), and even the Constitution, by economically penalizing “Blue” states for their impertinence.  This is the general backdrop on which we should view what is going on today on many levels.

President Trump is federalizing state National Guards, the equivalent of state militia, nominally under a Governor’s authority to fight crime.  Clearly a domestic use of military.  And, sending National Guard troops to “Blue” cities and states around the country  – Memphis being the “red city” exception. 

He has authorized ICE to aggressively detain suspected illegal immigrants, without regard to safeguards of due process or of green-card holders or even U.S. citizens.  His Justice Department is exacting revenge on political opponents; he is wielding the FCC as a “cancel culture” agent.

These excesses are not just about this Presidency, it is about the next one and the one after that.  Establishing the President as the supreme authority upends our Constitution.  I am the state.

The United States Supreme Court has not done much to stall this shredding of the Constitution.  During the next eight (8) months, it can reclaim its mantle as its protector and reset our government’s balance.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.Dear Readers, The United States Supreme Court’s 2024-25 term just started.  It might be its most memorable one.  We stand on the precipice of rewriting any constitutional restrictions on Presidential authority.

Louis XIV famously proclaimed, “L’État, c’est moi;” “I am the state.”  This was during the 17^th Century when nationalized kings were crowned in fiefdom power struggles with their fellow nobles.

This mind presaged the late 18^th-century revolt against entrenched power in the bloody French Revolution.  The guillotine claimed Louis XVI and Marie Antoinette, also claimed Maximillien Robespierre, the leftist architect of the Jacobin Revolt and leader of its sinister Committee of Public Safety.

On this continent, our own little revolt against our distant overlord started with a Declaration of Independence and a list of grievances premised on Enlightenment Age principles of basic human rights.  It ended with our beautiful Constitution, a legal contract between a government and its citizens.  Law ended what could have been Edmund Burke’s dystopian view of the world without a strong monarch as “solitary, poor, nasty, brutish, and short.”

Frankly, our Constitution needs mending.  The militia muskets defined in the 2^nd Amendment are dissimilar from the AK-47s of modern society.  A President modeled on George Washington, as a leader of the Continental Army, is not the same as a modern President with codes to unleash nuclear devastation.

Over the centuries, greased by Supreme Court decisions, the Presidency has ascended in power over Congress. Perhaps, this is an inevitable reaction to the march of world events.  Perhaps, fighting the World and Cold Wars demanded a more muscular President.  Perhaps, modern commerce demands an Executive Branch with almost unfettered regulatory power.

Our government is constructed on two (2) fundamental presumptions.  First, Congress and the People’s House are the ascendant in the tripartite power sharing created by the Founding Fathers.  Second, the 10^th Amendment guarantees that States have relevance and have at least coequal reserved sovereignty, as the federal government’s authority is limited to what is set forth in the Constitution.

We call our President the “Commander-in-Chief.”  Circa 1787, this meant commanding a rag-tag and ill-funded conscripts borrowed from state militias; today, this means having a large professional fighting force armed with sophisticated war-making weaponry of mass destruction.

To some degree, the Constitution restricts a President by requiring Congress to declare war.  We did not enter World War II when Pearl Harbor was bombed; it took Franklin Delano Roosevelt asking for a Declaration of War from the well of the House of Representatives.  9/11 did not start a war; the Iraq authorization from Congress did.

Over the years, Congress has added teeth to assert its authority of Presidential war-making authority.  Reconstruction wrought the “Posse Comitatus Act,” preventing the domestic use of our military except in the case of insurrection.  In the wake of Vietnam, Congress passed the “War Powers Act,” requiring a President to report to Congress about military conflict activation in order to authorize future engagement.

We are at an inflection point.  President Trump campaigned on a variety of promises premised on an almost Monarchical approach to government.  He is keeping these promises at a terrifying pace.

President Trump is aggressively pursuing a legal theory of the Unitary President.  Thus, he can ignore Congressional restrictions like the two (2) acts, something called the “Impoundment Act” (the President has to spend what Congress authorizes), and even the Constitution, by economically penalizing “Blue” states for their impertinence.  This is the general backdrop on which we should view what is going on today on many levels.

President Trump is federalizing state National Guards, the equivalent of state militia, nominally under a Governor’s authority to fight crime.  Clearly a domestic use of military.  And, sending National Guard troops to “Blue” cities and states around the country  – Memphis being the “red city” exception. 

He has authorized ICE to aggressively detain suspected illegal immigrants, without regard to safeguards of due process or of green-card holders or even U.S. citizens.  His Justice Department is exacting revenge on political opponents; he is wielding the FCC as a “cancel culture” agent.

These excesses are not just about this Presidency, it is about the next one and the one after that.  Establishing the President as the supreme authority upends our Constitution.  I am the state.

The United States Supreme Court has not done much to stall this shredding of the Constitution.  During the next eight (8) months, it can reclaim its mantle as its protector and reset our government’s balance.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.