Executive authority: when personal will undermines constitutional duty

“ Sovereign power does not reside in the White House at the other end of the avenue, nor in the adjacent Department buildings. No, sir; the sovereign power of this Union is shared by every freeman, its embodiment passing through the States from the people; a portion of it is centered in the Federal Constitution, and thereby that becomes the supreme law of the land, and is the only emliodiment of sovereignty. The President is but the agent of the Constitution, and I protest against its violation by his subalterns at Santa Fé. ”

“ The President of the United States, on the other hand, is in his own person a symbol of the collective will of the people, as opposed to the different members of Congress, which is of diverse composition and chosen on more local issues. There is moral authority, therefore, vested in the President. He is the true will of the people and his veto is their conscience. It is almost astonishing that a Republican democracy should have put such tremendous power into the hands of a single man. ”

“ If the people are sovereign, they are the source of power, and all that is not vested in some department of the government remains vested exclusively in the sovereign. If the legislative, executive, or judicial department of the government can act independently of the restrictions and prohibitions contained in the constitution, then the will of the servants of the people is the supreme law, and the sovereign power supposed to reside in the people is destroyed, and constitutional government is at an end. ”

“ It says that the President has a right to employ agents of his own choice, to aid HIM in the performance of HIS duties.
Mr. President, if these doctrines be true, it is idle for us any longer to talk about any such thing as a government of laws. We have no government of laws, not even the semblance or shadow of it; we have no legal responsibility. We have an executive, consisting of one person, wielding all official power, and which is, to every effectual purpose, completely irresponsible. The President declares that he is "responsible for the entire action of the executive department." ”

“ And now, the Constitution violated; a precedent set, which, if taken as a rule, will place the peace of the Republic at the mercy of one man's whims or ambition; the Presidential dignity dragged into the dust; the honor of the Nation sullied—for what? To further a personal scheme of the President, in which nobody took any but a negative interest—neither the Cabinet, nor Congress, nor the American people—nobody but the President, his aides-de-camp and a few speculators of dark reputation. What the President's motives were in so violently pushing this scheme, I do not know. ”

“ Sir, the President of the United States is of opinion, that an individual, called on to execute a law, may himself judge of its constitutional validity. Does nullification teach any thing more revolutionary than that? The President is of opinion, that judicial interpretations of the Constitution and the laws do not bind the consciences, and ought not to bind the conduct, of men. Is nullification at all more disorganizing than that? The President is of opinion, that every officer is bound to support the Constitution only according to what ought to be, in his private opinion, its construction. ”

“ The constitutional authority of the President of the United States (art. 2, §§ 1, 3) includes the executive power of the nation and the duty to see that the laws are faithfully executed. 'The President 'shall take care that the laws be faithfully executed.' Under this clause his duty is not limited to the enforcement of acts of Congress according to their express terms. It includes 'the rights and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution. ”

“ If political power be delegated power, they entertain little fear of its being abused. The people’s servants and favorites, they think, may be safely trusted. Our fathers, certainly, were not of this school. They sought to make assurance 314 doubly sure, by providing, in the first place, for the election of political agents by the people themselves, at short intervals, and, in the next place, by prescribing constitutional restraints on all branches of this delegated authority. ”

“ No one, I take it for granted, is disposed to disallow the principle that the representatives of the people are the proper ultimate authority in all matters of government, and that administration is merely the clerical part of government. Legislation is the originating force. It determines what shall be done; and the President, if he cannot or will not stay legislation by the use of his extraordinary power as a branch of the legislature, is plainly bound in duty to render unquestioning obedience to Congress. ”

“ But let me ask gentlemen if it is possible to place their officers in such a situation—to deprive them of their independency and firmness; for I apprehend it is not intended to stop with the secretary of foreign affairs. Let it be remembered that the Constitution gives the President the command of the military. If you give him complete power over the man with the strong box, he will have the liberty of America under his thumb. It is easy to see the evil which may result. ”

“ We've got -- in addition to all kinds of constitutional issues about interpreting statutes, you've got the canon of constitutional avoidance here; that is a very important rule in constitutional law. You've got the vesting cause, vesting power in the president. You've got inherent executive authority that people seem to just brush aside here.
HATCH: They'll talk in terms of, "Well, Congress is coequal with the president," but they don't ever really talk in terms of the president being coequal with the Congress. ”

“ Attorney General, thank you very much for being with us today. We've had a lot of discussion, and I know we're going to continue to have discussion, about this very serious constitutional issue, constitutional law issue.
Let me tell you, though, what I know and what I truly believe.
I truly believe that the American people expect the president of the United States, in a time of national emergency and peril, to take actions to protect them, even if those actions are not specifically authorized by statute. I think they expect no less. They would want the president to do no less than that. ”

“ The Administration now in power has rendered itself guilty of a wanton disregard of the laws of the land and of powers not granted by the Constitution. It has acted as if the laws had binding force for only those who are governed and not for those who govern. It has struck a blow at the fundamental principles of Constitutional government and the liberties of citizens. The President of the United States openly uses the powers and opportunities of his high office for the promotion of personal ends ”

“ They see a rapid and alarming concentration of all power in one man’s hands. They see that, by the exercise of the positive authority of the executive, and his negative power exerted over congress, the will of one man alone prevails, and governs the republic. The question is no longer what laws will congress pass, but what will the executive not veto? The president, and not congress, is addressed for legislative action. ”

“ And be it further enacted, That every such agent as may be appointed by virtue of the next preceding section, and every purser of the navy, shall give bond with one or more sufficient sureties, in such sums as the President of the United States may direct, for the faithful discharge of the trust reposed in him; and the paymaster of the army, the military agents, the purveyor of public supplies, the pursers of the navy, and the agents appointed by virtue of the preceding section, shall, whenever practicable, keep the public monies in their hands,To keep the public money in banks, &c. ”

“ The authority to the President to use agents to assist him in the application of the maximum and minimum section of the statute, and to enable officials to administer the law, gives a wide latitude for the acquisition, under circumstances favorable to its truth, of information in respect to the price and cost of production of goods at home and abroad, which will throw much light on the operation of the present tariff and be of primary importance as officially collected data upon which future executive action and executive recommendations may be based. ”

“ Each has piled up an immense surplus which has been used through allied trust companies for stock juggling; each has paid extravagant commissions to agents; the funds of each have been managed to afford to high officials plentiful opportunities of graft; each has its real estate, fire insurance, low rent and loan favor graft; in each will be found the same type of syndicates as President Alexander and Vice-President Hyde used for their personal enrichment in the Equitable. ”

“ Corruption of the respondent's intimate associates and aides Among the alleged grounds for impeachment in this regard, those based on the facts that occurred after the president's inauguration as President are that Choi Do-sul received 47 million Korean Won from Samsung and others during his office as the General Affairs Secretary for the President, that Ahn Hee-jung received 1 billion Korean Won of illegal fund from March through August of 2003, and the allega- tions of Yeo Taek-su and Yang Gil-seung. ”

“ However, none of the evidence submitted throughout the proceed- ings in this case supports the allegation that the respondent directed or abetted the above Choi Do-sul and others in receiving the illegal funds or was otherwise illegally involved therein. Therefore, the alleged grounds for impeachment premised on the above are meritless. The rest of the alleged grounds for impeachment are based on facts that occurred prior to the respondent's inauguration as President and are thus clearly irrelevant to the respondent's performance of offi- cial duties as President. ”

“ However, the President is not an institution that implements the policies of the ruling party, but instead, the President is the constitu- tional institution that is obligated to serve and realize the public in- terest as the head of the executive branch. The President is not the President merely for part of the population or a certain particular political faction that supported him or her at the past election, but he or she is the President of the entire community organized as the state and is the President for the entire constituents. ”

“ Therefore, the President should, in principle, restrain himself or herself from expressing his or her personal opinions towards party politics when exercising duties as the head of the state or the chief executive officer. Furthermore, when the President makes statements concerning elections as the state institution of president and not as a party member or as a mere political figure, the President is bound by the obligation to maintain political neutrality concerning elections. ”

“ The possibility of affecting the public's open opinion formulation process and distorting the political parties' competitive relationship through the function and influence of the official duties is particular- ly greater for the executive institutions at the national or local gov- ernments. Therefore, political neutrality concerning elections is even more greatly requested than other public officials for the President and the chief executive officers at the local governments. ”

“ Like- wise, in the case of the presidency, the status of the President as a private citizen who may perform party activities for the party of his of her membership and the status of the President as a constitutional institution bearing the obligation to serve the entire population and the public welfare should be distinguished as two distinct concepts. The mandate that the President should maintain political neutrality concerning elections does not require no political activities or indif- ference to party politics on the part of the President. ”

“ Such free competition relationship among the political parties to obtain the votes through the voters' judgment upon the policies and political activities is significantly perverted by one-sided intervention of the President supporting a particular party. The relevant part of the President's statements at issue repeatedly and actively expressed his support for a particular political party in the course of performing his official duties and further directly appealed to the public for the support of that particular political party. ”

“ Here, if the President makes a statement unilaterally supporting a particular political party and influences the process by which the public forms its opinions, the President thereby intervenes and distorts the process of the independent formation of the public's opinions based on a just evaluation of the political parties and the candidates. ”

“ However, such an one-sided act of the President toward a specific citizen organization might well cause a division between the groups of citizens supporting the President and the groups of citizens not sup- porting the President and, thereby, does not conform to the obligation of the President to unify the national community as the President of the entire public, which might lead to the public's distrust against the administration as a whole. ”

“ When the President himself or herself fails to respect and abide by the law, no citizen, let alone no other public officials, can be demanded to abide by the law. (C) To conclude, the act of the President questioning the legitimacy and the normative power of the current statute in front of the public is against the principle of government by the rule of law and is in violation of the obligation to protect the Constitution. ”

“ The President's suggestion to hold a national referendum on whether he should remain in office is an unconstitutional exercise of the President's authority to institute a national referendum delegated by Article 72 of the Constitution, and thus it is in violation of the constitutional obligation not to abuse the mechanism of the national referendum as a political tool to fortify his own political position. ”

“ The power and political authority of the President is vested by the Constitution and a president who disrespects the Constitution denies and destroys his or her own power and authority. Especially, the importance of a resolute position of the President to protect the Constitution cannot be emphasized enough in today's situation where the constitutional awareness among the public has just begun to sprout in a brief history of democracy and the respect for the Constitution has yet to be firmly established in the consciousness of the general public. ”

“ Article 65 of the Constitution includes the President in the defini- tion of public officials who are subject to impeachment, memorializing a discerned position that even the President elected by the public and thereby directly endowed with democratic legitimacy may be im- peached in order for the preservation of the constitutional order and that the considerable political chaos that may be caused by a decision to remove the President from office should be deemed as an inevitable cost of democracy in order for the national community to protect the basic order of free democracy. ”

“ B. The Constitution, in Article 65 (1) , provides for the grounds of impeachment that "the National Assembly may resolve to impeach the President, ... upon violation of the Constitution or statutes by the President, ... in performing official duties." (1) All state institutions are bound by the Constitution. Especial- ly, the legislator should abide by the Constitution in the legislative process and the executive branch and the judicial branch are bound by the Constitution in exercising the state authority vested by and under the Constitution. ”

“ Even if it is necessary to limit the grounds for impeachment to an 'act of grave violation' in order to prevent abuse of the impeachment system, it is manifest that a violation of the constitutionally mandated obligation or an unfaithful performance of the official duties by the President, unlike other acts of violation, constitutes a grave violation of the Constitution or statutes. ”

“ An 'act of betrayal of the public's trust' is inclusive of other patterns of act than a 'violation of law significant from the standpoint of pro- tection of the Constitution,' and, as such, typical examples thereof include bribery, corruption and an act manifestly prejudicing state interest, besides an act threatening the basic order of free democracy. ”

“ On the other hand, from the standpoint that the President is an institution representing the public's will directly vested with democratic legitimacy through election, a valid ground for impeaching the President can be found only when the President has lost the public's trust by the act of violation of law to the extent that such public trust vested in the President should be forfeited while the presidential term still remains. ”

“ Although it is very difficult to provide in general terms which should constitute a 'grave violation of law sufficient to justify the removal of the President from office,' that the impeachment adju- dication process is a system designed to protect the Constitution from the abuse of public officials' power on one hand and that the decision of removal of the President from office would deprive the public's trust vested in the President on the other hand, can be pre- sented as important standards. ”

“ Democracy does not merely refer to the elections or electoral triumph of the political factions. The majority obtained from an election only reflects the desire of the eligible voters at such election. It never enables the representatives to exercise the powers without having to be mindful of the correctness and legitimacy pursuant to the rule of law.
Now, the present Constitution brings the Court into existence and charges it with the key authority to check and balance the exercise of powers in keeping with the rule of law and the principles of control of constitutionality of laws. ”

“ However, pursuant to the principle of the rule of law that is a basic principle of our Constitution, any and all government power including the President and the National Assembly must be subject to the rule of law, and the limit that all state function is the means to realize the value of basic rights of the citizens must uncompromisingly be observed. Also, the Constitutional Court is a state institution that is dedicated to the protection of the Constitution and the guarantee of the basic rights of the citizens. ”

“ Accordingly, the President should not only make every possible effort to protect and realize the Constitution, but also abide by the law and perform no act in violation of any of the valid law. Furthermore, the President should do all acts in order to implement the objective will of the legislator. The obligation of the executive branch of the government to respect and implement the law is equally applicable to the statutes that the executive branch deems unconstitutional. ”