In comparison, here in Brazil we are very far from the reality described - even if it is an exercise in maximizing the thesis of the unitary Executive - in the text. Unlike the American Constitution, our constitutional text simply states that the “Executive Power is exercised by the President of the Republic”. There is not even a shadow of the “vested in” of Article 2 in the model of state established in Brazil since 1988. In fact, not even the expression “ Chief of the Nation”, which has historical resonances with us, appears in the 1988 text (there are two or three instances in which the expression “Chief of the Executive” appears, but even so, in a somewhat disconnected way and without the grandiloquent weight of the categorical affirmation that the President of the Republic is the “elective chief of the Nation”). The current situation of the Presidency in Brazil is one of discredit and fragility. There is very little capacity for energetic and decisive action. Practically everything depends on negotiations and deals with other institutional actors: the President, on his own, can do very little. I believe that this state of affairs is not a coincidence, but the direct result of the intention of the framers of '87 to weaken and diminish the power of the President as a form of institutional revenge for the abuses committed by the military regime. But the question always remains: why throw the baby out with the bathwater? It's not very smart. But that's exactly what they did, it seems.
If I'm reading this correctly, and please let me know if I'm not, it seems as if the Presidential Authority and Power behaves within the government much as the Pope's does within the Church. That is, my current understanding of Ecclesial power/authority is that it stems and flows through the Chair of Peter, and that this is what gives the man holding the office of Pope power and authority over the whole Church. To such an extent that he has direct authority over every individual.
In like manner, within the United States Executive Branch, all power and authority (under the maximalist interpretation) comes from the office of President. Thus, he has direct power and authority over everyone within it. And, as you noted, it creates some odd rationales with the way that the law is currently crafted in terms of legal responsibility within the body of that Head, that Person.
Thank God we don't have that confusion on responsibility with the Pope!
That’s a very interesting comparison. Within the executive branch, I think the thrust of the recent decisions is that the president’s control is indeed plenary as you say. But of course, the executive power is one power among others. In that respect, it is different than the church which features no separation of powers, so that the Holy Father is the apex of the whole system. This piece explains the constitutional order of the Holy See: https://thenewdigest.substack.com/p/the-influence-of-the-roman-pontiff
I didn't realize that this extended to the constitution of the Vatican City State as well, though I hadn't ever given it much thought. It is certainly extremely interesting that the Pope doesn't have separation of powers there, vs here the Executive obviously does. Such allows one person to oversee and rule for the Good Life in the small Polity of Vatican City.
As I ponder it over my morning coffee, I also find it interesting that we don't do this with any other branch of government. Neither the Supreme Court nor Congress have any theories of delegation of powers, or that the lower courts and legislatures all derive their powers from the highers, and some delegation could happen, or they could step in at any time simply to tell the lower systems "Your will is MY WILL.." We would view such an action as an over reach if the courts began doing so in state courts, the National in State's, etc.
I mention it simply because it seems fascinating that, of three branches - one is able to be a Leviathan. And the others not.
I was unaware of the quasi-judicial presidential directing stuff related to the Myers and Arlington cases and found them interesting. The relationship between the President's directive power and the independence of quasi-judicial functions within the exec. adds a very interesting dimension to considerations of executive authority and accountability.
But re: "Leviathan is redeemed by law’s internal morality," we had something like an opening taste of Fullerian procedural supremacy a few years ago, and I suspect most people found it to be bitter indeed. Ironically, there are things playing out across the world, especially in -- but not exclusively in --many countries in Africa, that suggest a real possibility that during that time of expanded powers, our Leviathan may have inadvertently sprayed growth juice onto the seeds of its own destruction...
"Leviathan is redeemed by law’s internal morality."
That the Law has an internal morality is questionable nowadays. For the layman like myself (a bricklayer by trade) the logic of the constitution is clear. No matter how many persons are in the executive branch, all actions are as if there were only THE president acting. All the case law seems only attempts at power seeking. Who is the sovereign in our republic? "The People?" (Whatever that is). The Constitution? The "government?" Or Individuals?
Does the constitution give the government unlimited powers? Or only enumerated powers? Individuals, if the sovereign authority, can only delegate what power and right they posses inherent in their life. Nothing more and nothing less. That makes sense to me.
In comparison, here in Brazil we are very far from the reality described - even if it is an exercise in maximizing the thesis of the unitary Executive - in the text. Unlike the American Constitution, our constitutional text simply states that the “Executive Power is exercised by the President of the Republic”. There is not even a shadow of the “vested in” of Article 2 in the model of state established in Brazil since 1988. In fact, not even the expression “ Chief of the Nation”, which has historical resonances with us, appears in the 1988 text (there are two or three instances in which the expression “Chief of the Executive” appears, but even so, in a somewhat disconnected way and without the grandiloquent weight of the categorical affirmation that the President of the Republic is the “elective chief of the Nation”). The current situation of the Presidency in Brazil is one of discredit and fragility. There is very little capacity for energetic and decisive action. Practically everything depends on negotiations and deals with other institutional actors: the President, on his own, can do very little. I believe that this state of affairs is not a coincidence, but the direct result of the intention of the framers of '87 to weaken and diminish the power of the President as a form of institutional revenge for the abuses committed by the military regime. But the question always remains: why throw the baby out with the bathwater? It's not very smart. But that's exactly what they did, it seems.
If I'm reading this correctly, and please let me know if I'm not, it seems as if the Presidential Authority and Power behaves within the government much as the Pope's does within the Church. That is, my current understanding of Ecclesial power/authority is that it stems and flows through the Chair of Peter, and that this is what gives the man holding the office of Pope power and authority over the whole Church. To such an extent that he has direct authority over every individual.
In like manner, within the United States Executive Branch, all power and authority (under the maximalist interpretation) comes from the office of President. Thus, he has direct power and authority over everyone within it. And, as you noted, it creates some odd rationales with the way that the law is currently crafted in terms of legal responsibility within the body of that Head, that Person.
Thank God we don't have that confusion on responsibility with the Pope!
That’s a very interesting comparison. Within the executive branch, I think the thrust of the recent decisions is that the president’s control is indeed plenary as you say. But of course, the executive power is one power among others. In that respect, it is different than the church which features no separation of powers, so that the Holy Father is the apex of the whole system. This piece explains the constitutional order of the Holy See: https://thenewdigest.substack.com/p/the-influence-of-the-roman-pontiff
Thanks for the link!
I didn't realize that this extended to the constitution of the Vatican City State as well, though I hadn't ever given it much thought. It is certainly extremely interesting that the Pope doesn't have separation of powers there, vs here the Executive obviously does. Such allows one person to oversee and rule for the Good Life in the small Polity of Vatican City.
As I ponder it over my morning coffee, I also find it interesting that we don't do this with any other branch of government. Neither the Supreme Court nor Congress have any theories of delegation of powers, or that the lower courts and legislatures all derive their powers from the highers, and some delegation could happen, or they could step in at any time simply to tell the lower systems "Your will is MY WILL.." We would view such an action as an over reach if the courts began doing so in state courts, the National in State's, etc.
I mention it simply because it seems fascinating that, of three branches - one is able to be a Leviathan. And the others not.
Well written and interesting!
I was unaware of the quasi-judicial presidential directing stuff related to the Myers and Arlington cases and found them interesting. The relationship between the President's directive power and the independence of quasi-judicial functions within the exec. adds a very interesting dimension to considerations of executive authority and accountability.
But re: "Leviathan is redeemed by law’s internal morality," we had something like an opening taste of Fullerian procedural supremacy a few years ago, and I suspect most people found it to be bitter indeed. Ironically, there are things playing out across the world, especially in -- but not exclusively in --many countries in Africa, that suggest a real possibility that during that time of expanded powers, our Leviathan may have inadvertently sprayed growth juice onto the seeds of its own destruction...
"Leviathan is redeemed by law’s internal morality."
That the Law has an internal morality is questionable nowadays. For the layman like myself (a bricklayer by trade) the logic of the constitution is clear. No matter how many persons are in the executive branch, all actions are as if there were only THE president acting. All the case law seems only attempts at power seeking. Who is the sovereign in our republic? "The People?" (Whatever that is). The Constitution? The "government?" Or Individuals?
Does the constitution give the government unlimited powers? Or only enumerated powers? Individuals, if the sovereign authority, can only delegate what power and right they posses inherent in their life. Nothing more and nothing less. That makes sense to me.