The President and the Snowflakes
The problem with defining what the President can and cannot do is simply that the limitation of a President’s authorities is not always so clear-cut and have long been mired in controversy as to where the line of his authority ends. Generally speaking, the powers of the President exist on a continuum, that continuum being that when he operates unilaterally, without Congressional approval, or against the wishes of Congress entirely (except where purely executive duties and functions are concerned, or where the President’s powers as Commander-in-Chief as regards his war powers are concerned), his actions are more likely to be deemed Unconstitutional. On the other hand, when the President operates pursuant to his enumerated powers and duties as outlined in the Constitution, and operates pursuant to Congressional approval, he operates most lawfully and Constitutionally.
I think the problem lies at the heart of the fact that most individuals simply don’t really know what the functions of the President of the United States truly are. The President of the United States is not a monarch; he is not a dictator or a ruler. He is not all powerful nor immune to criminal prosecution nor civil suits, even while in office. The President is to be a representative of the nation as a whole, as well as represent the nation in foreign affairs and diplomacy. As per the Constitution, his duties are to “faithfully execute the nation’s laws,” be Commander- in- Chief of the nation’s armed forces, represent the nation in foreign affairs, and sign and ratify treaties with foreign nations (pursuant to Senatorial approval).
What’s interesting to me is all the fuss over the president when I think, all in all, the Executive Branch has much less authority than the other branches. I am of the belief that most of the real power lies with the Legislative, or Congress. But the unique and ingenious aspect of the American Federal government is that each branch was designed to “check” the power of the other branches in various ways, so that no one branch truly becomes all that powerful. As James Madison said over two centuries ago, “The accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The president can’t just get up and say, for instance, “There shall be no more abortions in this land!” and have it actually be effective, nor can he build his “wall” to keep out illegal immigrants without Congressionally approved funds. And despite what many think, his ability to unilaterally influence the economy is extremely limited.
With the “advice and consent of the Senate” he may nominate justices to sit on the Supreme Court, but the Senate must approve. He may also propose legislation to Congress. In either of these scenarios, however, Congress (or the Senate where approval of Supreme Court nominees is concerned) may just simply choose to ignore the president.
A lot of people are looking to Trump to appoint “pro-life” nominees to the Supreme Court, thinking it will “stop abortion” or at least halt abortions or make them less prevalent and harder to obtain. And Trump nominated (and the Senate approved) Neil Gorsuch, a “conservative” justice who has even authored a book speaking out against euthanasia, to the Court. However, presidential power as regards the judiciary ends at the nomination of justices. Even if the Senate approves, the tenure of a Supreme Court justice (and all Article III judges in the Federal scheme) is for life, and as per the mandates of the United States Constitution, neither can the justices’ pay be reduced. If a Supreme Court justice should change his views over time, or even abandon the political party that nominated him, there’s nothing the president can do. Supreme Court justices may also be impeached for “cause,” but only once has this ever happened in United States history by way of the impeachment of Samuel Chase in the 19th century.
Also, what I’d imagine the majority of the American public and “pro-lifers” who think the entire fate of the nation depends on which individual is nominated to hold the office of the Presidency do not realize is that Congress has the Constitutionally-mandated authority to control the appellate jurisdiction of the Supreme Court. This means that, in theory at least, it is possible (even if not entirely probable under the current tides of American politics) that Congress may pass legislation- even by overriding a presidential veto- to effectively strip the Supreme Court (and any other lower level federal circuit or district court with appellate jurisdiction) of jurisdiction to even so much as be able to hear any case-or controversies that come before it via a petition for certiorari regarding abortion, gun rights, religion, homosexuality, immigration, etc… Known as “jurisdiction stripping” this power bestowed upon Congress has long been seen even among “conservatives” as a necessary check upon the power of the Supreme Court.
But I think the caveat here also to be noted is that who holds the office of presidency is no joke. In times of martial law, war and political upheaval, where the civilian courts no longer operate and the writ of habeas corpus as well may be suspended and, as Commander-in-Chief of the nation’s Armed Forces (retaining the ability also to call forth the state militias and command them) and highest Federal law enforcement officer, presidential power is at its highest point. He can establish Article II military tribunals, appoint temporary justices to the Supreme Court while Congress is not in session and pursue many other functions that, in times of peace and plenty, would normally be forbidden to him to do without Congressional approval. Of course, such power is not absolute, as Congress still retains jurisdiction as regards to war and trying detainees, but especially since 9/11, and the passage of the Authorization for the Use of Military Force, if war ever actually makes its way to American soil, who holds the position of Commander-in-Chief is a critical issue. Looking back throughout the ages even to the days of Washington and Lincoln, the authorities of the Executive and Legislative branches seem to constantly bump into each other, sometimes in a cooperative relationship, sometimes an antagonistic one.
As was stated over a century ago in Moyer v. Peabody (1909),
…Public danger warrants the substitution of executive for judicial process, and the ordinary rights of individuals must yield to what the executive honestly deems the necessities of a critical moment…the plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. It varies with the subject matter and the necessities of the situation.
In recent decades it seems that Congress has consistently delegated away more authority to the Executive Branch than what was seen in earlier generations, especially when one considers the fact that the United States hasn’t actually been at “war” since World War II (the last time Congress officially declared war, as the following “wars” were initiated by Executive action), and the “war on terror” has continued to transform the political landscape for nearly two decades now.
Presidents may issue executive orders and proclamations. Presidents since the very beginning, even since the days of George Washington have done this, though the constitutionality and legality of these proclamations and executive orders varies. Depending upon the exact exigency and nature of the circumstances, and whether or not Congressional approval has been obtained, they may or may not be Constitutional or have the full force of law at the Federal level.
There’s been much talk over the recent Syrian airstrikes and all Trump’s latest actions. To be sure, my expertise as far as military strategy goes is a flatline zero, so I won’t sit in judgement on such actions or the necessity of them, but I do think, however, that America is the equivalent of a spoiled and bratty child, believing that war, strife, famine and hardship is something that only happens in some far-away place only to be told in a newspaper somewhere. War is something that happens to “them,” not “us.” Since war has not actually been fought on American soil (in the actual states) since the Civil War, I think sometimes Americans come to believe that it could never happen to us.
So while we continue on with our spoiled ways, politics, the nation’s armed forces, public schools, institutions of marriage and high courts throughout the land must bow to the ways of political correctness over common sense, because being concerned with promoting “fairness,” “equality” and being sure not to offend anyone or hurt anyone’s feelings by means of saying that “discriminating” legislation is Constitutionally permissible is obviously more important than the preservation of civilization and the stability and prosperity of our nation.
But I think perhaps, in time, we’ll see as a nation that we are not so immune to war or the hardships that true political upheaval brings. And perhaps when that day comes, it will put an end to feminism, excessive and overbroad civil rights legislation and the snowflake generation.
 Congress must declare war, but since the beginning since the Presidency of Washington, presidents have taken military action without Congressional approval or declarations of war. However, Congress may prohibit or require cessation of military action. (See also War Powers Act 50 U.S.C. Sect. 1541) If Congress should demand cessation of military action, the President must comply or else be in dereliction of his oath and duty to “faithfully execute the nation’s laws” under the Constitution. See also endnote 3 discussion, infra.; See also e Daniel E. Hall & John P. Feldmeier, Constitutional Law: Governmental Powers and Individual Freedoms, Second Edition (Pearson, 2012) for reference.
 See Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952), wherein The Supreme Court ruled, in a 6-3 decision, against the actions of then-President Truman for his order for the Secretary of Commerce to take control of most of the nation’s steel mills. Truman did this by way of Executive Order (10340), Congress made no response to the order to either approve or disapprove. Writing for the majority, Justice Black concluded, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws…and the vetoing of laws…” In a concurring opinion, Justice Jackson conceded that, “…When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain…”; See also Korematsu v. United States 323 U.S. 214 (1944).
 See Section II of the United States Constitution for the powers vested in the Executive Branch https://constitutioncenter.org/interactive-constitution/articles/article-ii#top Unlike the enumerated powers of Congress which are specific and defined, Presidential powers are often the subject of intense debate and long have been since the formation of the Constitution (see also Article I of the United States Constitution for the powers of the Legislative Branch https://constitutioncenter.org/interactive-constitution/articles/article-i) Whether or not there exists inherent powers that the President possesses is controversial among Constitutional scholars.
 See United States v. Burr, F. Cas. 30 (C.C.D.Va. 1807); United States v. Nixon, 418 U.S. 904 (1974); Nixon v. Administrator of General Services Administration, 433 U.S. 425 (1977); Nixon v. Fitzgerald, 457 U.S. 800 (1982); Harlow v. Fitzgerald, 457 U.S. 800 (1982); Jones v. Clinton, 520 U.S. 681 (1997). While presidents have complete immunity and cannot be sued for actions committed in the performance of their duties, presidents are not shielded from civil suit in regards to actions unrelated to their duties and the Supreme Court has ruled that they may even be sued while in office (See Jones v. Clinton, supra) so long as it does not interfere with important presidential duties. While presidents, former presidents and lower executive officials enjoy privileges, some executive privilege may be overcome by the need for specific criminal evidence in a criminal case (See United States v. Nixon, Supra).
 See The President’s Job According to the Constitution https://www.jfklibrary.org/~/media/assets/Education%20and%20Public%20Programs/Education/middle%20school%20programs/The%20Presidents%20Job%20According%20to%20the%20Constitution.pdf from the JFK library for a simple, clear-cut outline in plain English of the President’s duties and obligations under the Constitution.
 See The Federalist No. 47 (1788)
 When effective, and especially when approved by Congress, Executive Orders or Proclamations can have the effect of statutes. However, Presidential Executive Orders or Proclamations, if lawful, are only done to enforce his lawful authority, of which most of the main “issues” revolving around today’s politics do not fit into. See Youngstown, supra, endnote 2 discussion that “…the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
 See ongoing conflict about Trump’s border wall https://www.cnbc.com/2018/02/28/trump-won-a-judges-permission-to-build-a-border-wall-with-mexico-now-he-just-needs-the-money.html
 See endnotes and discussion 2, 3, and 5, supra.
 This has happened many times over in United States history. The most recent example being the nomination of Merrick Garland by Barack Obama, whom Senate Republicans refused to hold a hearing for before Obama left office. Subsequently, Donald Trump successfully nominated Neil Gorsuch in place of Obama’s nomination. It has long been the way of Presidents to nominate justices for the Court before leaving office, that way the President’s party may still hold the majority of political power on the Court. Also common, at times, is the retirement of justices before their party leaves office that way younger justices of the same political party may be nominated by the President to take their place.
 See, for instance, Gorsuch’s The Future of Assisted Suicide and Euthanasia (New Forum Books, 2009). The author of this article has not read this book, but is merely aware of its existence.
 See discussion, infra, endnote 13.
 For a comical historical reference, former President Dwight D. Eisenhower, after appointing former Chief Justice Earl Warren to the Court, remarked that he was “The biggest damn-fool mistake I ever made!” and according to former President Harry S. Truman, “Whenever you put a man on the Supreme Court, he ceases to be your friend.”
 For more about Samuel Chase, See https://www.oyez.org/justices/samuel_chase
 See, for instance, Congress’s Power Over Courts: Jurisdiction Stripping and the Rule of ‘Klein’ from the Homeland Security Digital Library https://www.hsdl.org/?abstract&did=804643 for a report on the issue. Congress has power over “inferior” Federal courts, which are established and may be abolished by Congress at will, and Congress may also, under Article III’s “Exceptions Clause” prohibit the Supreme Court from hearing certain classes of cases that come before it, even where legitimate “cases” or “controversies” of important Constitutional concern are at stake. Congress may not, however, abolish the Supreme Court as it is established by the Constitution. See also U.S. Const. Article III, Sec. I “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” See also Ex parte McCardle 74 US 506 (1869); United States v. Klein 80 U.S. 128 (1871)
 Even current Chief Justice John Roberts of the United States Supreme Court has a history dating back to his days as a lawyer during the Reagan Administration in support of court-stripping measures https://www.acslaw.org/acsblog/judge-roberts-and-court-stripping and the late conservative activist Phyllis Schlafly, famously known for leading the opposition against the Equal Rights Amendment, was also a proponent of jurisdiction stripping, (See Can Congress Limit Federal Court Jurisdiction by Phyllis Schlafly (2006) http://eagleforum.org/column/2006/jan06/06-01-25.html ) though I suspect in the latter case with conservatives it has been over the decades an issue of getting legislation passed that is not subject to judicial review.
 Known as “recess appointments,” such Presidential power is temporary, and the justices only remain until Congress convenes the next session, unless the Senate approves of the appointee(s).
 See endnote 19 and discussion, infra.
 Not an entirely antagonistic relationship in our nation’s history, but the lines between the Executive and Legislative authorities in times of war have seemed to bump into each other. Several presidents have made use of state militias, especially during the Civil Rights Era to quell domestic disturbances and have done so under their legitimate War Powers. Also, presidents such as Abraham Lincoln have issued decrees to suspend habeas corpus in times of war, without running into opposition from Congress. See Martial Law and Constitutional Limitations https://law.justia.com/constitution/us/article-2/12-martial-law-and-constitutional-limitations.html
 212 U.S. 78
 See Official Declarations of War by Congress from the U.S. Senate’s website: https://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm
 See Executive Orders 101 from the National Constitution Center: https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them/
 Up until the late 1980s, sex-based discrimination was held to a lesser standard of judicial review generally referred to as “semi-suspect,” based on a three-pronged scale the Court has long used when weighing whether or not a discriminating statute, law or ordinance can be upheld as Constitutionally permissible on account of it serving a compelling and legitimate state or governmental interest. However, in the modern-era, sex-based discrimination has been wholly and entirely eliminated and taken to its upmost extreme, now being held to a “strict scrutiny” standard that was once solely reserved for race-based discrimination cases as can be seen in particular since the rulings in cases such as Lawrence v Texas 539 U.S. 558 (2003) and the recent Supreme Court ruling in Obergefell v Hodges 576 U.S._(2015) declaring that states cannot Constitutionally deny to same-sex couples the legal right to marry the same as heterosexual couples. Sex-based discriminations in the United States were never always as prevalent, at least in public life, as is commonly propagated by the media today, yet the Supreme Court and local and state laws still upheld certain discriminating legislation on the basis of sex or legitimacy as serving a legitimate function in the preservation of civilization and ordering of society and family relationships.
Perhaps the ruling of the Massachusetts Supreme Court and the majority and dissenting opinions produced in the case of Goodridge v. Massachusetts Department of Public Health 440 Mass. 309, 334, 798 NE2d 941, 963 (2003) can shed light on exactly why certain sex-based discriminations are necessary to society. This case made Massachusetts the first state to ever legalize “gay marriage” in United States history. The majority opinion of the court held that
The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples…The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex…
Indeed, what argument can be made except that if offends someone’s sensibilities or personal religious beliefs? Without defining marriage in sexually distinctive ways being about the provision and protection of women and children so that children can be decently reared and stable families- true stable families- can be formed no case can be made. Indeed, the “Commonwealth” have no case. If not for the aforementioned purpose, then what purpose does marriage serve? As for the dissenting view,
…Because a conceivable rational basis exists upon which the Legislature could conclude that the marriage statute furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children, it is a valid exercise of the State’s police power…
But, in today’s world, does it matter who raises the children, who one chooses to have sex with or even how many partners they have or how “blended” their families are? Conceivably, to society today, it assuredly does not even remotely matter anymore…