Law: May 2007 Archives

In a discussion on the Trinity, Trent Dougherty at Prosblogion rasies the question of whether President Bush is his own president. There's a sense in which Bush is the president of those who voted for him, i.e. they (at least at one point) identified with him as the person they wanted to be president. There's a broader sense in which he's the president of every U.S. citizen, i.e. he's the president who governs over them. That's the sense Trent has in mind. In that sense he is Ralph Nader's president as much as he is James Dobson's.

But is he his own president? Trent thinks yes, and I agree. Mike and Dale in the comments say no, and they offer two reasons. First, he can't pardon himself, which means he doesn't have that particular authority over himself. Second, he's not under his own authority, because as the top executive he's not under anyone's authority. I've adapted what follows from my comment on that post.

I think it's helpful to compare the president's authority with authority in other branches of government. House Speaker Nancy Pelosi obviously has limited authority, She needs on her side either (1) the president, at least 50% of the House, and at least 51 senators (and in the event of a filibuster at least 60 senators) or (2) at least 67 senators and 2/3 of the House. It's fairly easy to see how her authority is fairly limited. But is she her own speaker? She speaks for the House. She leads a body of which she is a member. In the UK system of government, there's a similar position held by someone who isn't a member of the body in question, but she actually is a member of the U.S. House of Representatives. She votes for the speaker along with the other members, and if she sets up rules she then has to abide by them or go through the normal process of changing them. So I'd say that we should consider her to be her own speaker.

The Supreme Court doesn't have to treat its precedents as binding in the same way that lower courts have to (but all of the justices except Thomas treat precedent as having some relevance for any case before them, differing only in terms of the degree of importance they place on precedent). Still, if Justice Breyer as a private citizen breaks a law that the Supreme Court declared binding he has broken the law. He is in this sense a member of the final judicial panel that is over him. In many cases directly bearing on him, he might recuse himself from the decision-making process, but lots of cases will come up that could have a future effect on him as a private citizen (including a famous decision not too long ago that would have changed the outcome of a presidential election had things gone his way). In that sense he is one of the Supreme Court justices whose authority does count in some ways as being over him as a private citizen.

The only difference with the executive branch is that the president is one person. If he issues an executive order about a certain practice, he does have the authority to remove the order or replace it with a contrary one. However, while the order is in place it is binding on him. He is thus under the president's authority, although he is also the president who can change dictates issued by that authority.



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