Mr. McCormack
American Government
CentralDauphinHigh School
Chapter Fourteen – The Presidency in Action
I. The Growth of Presidential Power
A. Article II vests the executive power of the United States government in a president, but the meaning of that power has changed with time
1. The president’s powers are more vaguely defined by the Constitution and less numerous than the powers of Congress
2. Many Framers feared that the president would be a weak officer that would be dominated by the Congress
3. For much of our early history the power of the president was determined by the individual currently in office
4. Andrew Jackson would be the nation’s first extremely powerful president
B. There are many reasons for the growth of presidential power
1. Unity of the Presidency
a. The president, an individual, can act more quickly and efficiently than the many members of Congress
b. The president may execute his powers at any time and in any place, unlike Congress, which must be assembled together
2. War and Crises
a. During times of national emergency, Americans tend to rally around their president
b. Congress is unlikely to oppose a president when he has such popular support
c. The nation’s strongest presidents (Lincoln, FDR, etc.) have typically been war-time presidents
3. Increasing demands placed on government
a. America has become a much more complicated place, and the American people demand much more support from their government
i. Social services, welfare, health care, etc.
ii. Regulations for safe workplaces, clean environment, etc.
b. It would be too difficult for Congress to manage the large Federal bureaucracy by committee, so the president oversees its operations
c. The president can shape public policy through his leadership of the bureaucracy
4. Congress frequently delegates important decisions to an executive agency or to the president
a. This is politically easier than making hard decisions for themselves
b. Many presidents have sought this increased authority
c. Some argue this blurs the separation of powers
d. The Supreme Court will occasionally cut back on the president’s assumed powers
5. Presidents are best suited to shape public opinion through the mass media
C. There are two prevailing views of the scope of presidential power
1. Loose (“Liberal”) Constructionist View
a. The president may or should do whatever he deems to be in the national interest unless specific Constitutional or statutory language prevents it
b. This view is also known as the “stewardship theory”
c. President Theodore Roosevelt championed this view
d. Critics claim this view has created an Imperial Presidency
e. This view has been more popular in the last fifty years, even with President Bush
2. Strict (“Conservative”) Constructionist View
a. The president should only do what the Constitution or statutory law authorizes him to do
b. This view was supported by William Howard Taft and other Republicans in the early twentieth century
II. The President’s Executive Powers
A. Executing the Law
1. President Jefferson believed that “the execution of the laws is more important than the making of them.”
2. As the nation’s chief executive officer, the president enforces, administers, or carries out thousands of laws
3. Presidents have discretion in how they will enforce and interpret the laws
a. Prior to roughly 1974, Presidents had the power to impound funds in the budget
i. Congress would appropriate the money, but the president wouldn’t spend it
ii. Congress believed Nixon abused this power, and so stripped it from the president
b. President Bush uses “signing statements” to indicate how he will enforce laws that have been passed
B. The Ordinance Power
1. Presidents may issue “executive orders” (decrees) that have the force of law
a. Executive orders are published in the Federal Register when they are made
b. All standing executive orders are published annually in the Code of Federal Regulations
2. Presidents issue executive orders for a variety of reasons
a. Proclamations may be ceremonial or symbolic
b. National Security Directives relate to defense
c. Other executive orders may establish public policy without Congressional consent
i. The Emancipation Proclamation freed the slaves in rebellious states
ii. Truman integrated the armed forces by executive order
iii. Johnson used the executive order to prohibit racial discrimination in hiring and contracting
iv. Reagan used the executive order to prevent federal funding of abortion advocacy
1. Reversed by Clinton in 1993
2. Reinstated by G. W. Bush in 2001
v. Bush used an executive order to limit federal research into stem cells
d. Presidents may not directly contradict an act of Congress or the Constitution through executive order
3. This “one-man legislating” is seen by many to be dangerous, undemocratic, and contrary to the spirit of the Constitution
4. Changing executive orders
a. Courts may overturn executive orders
b. Congress may overturn executive orders through legislation
c. Succeeding presidents may overturn earlier executive orders
C. The Appointment Power
1. The president has the power to appoint the top-ranking officers of the federal government
a. Cabinet Secretaries
b. Ambassadors and other diplomats
c. Heads of other federal agencies (i.e. NASA, EPA, etc.)
d. Federal judges, U.S. Marshals, and U.S. Attorneys
e. Military officers
2. The president nominates candidates for Senate consideration
a. The tradition of senatorial courtesy requires that presidents get the prior approval of the U.S. Senators from his own party who represent the state where the appointee will serve
b. Any Senator also has the right to place a “hold” on a nominee, thus preventing the Senate from voting on the nomination
c. Nominees will be officially examined by the appropriate Senate committee before facing a vote of the whole senate
d. A great many of the nominees (i.e. military officers) will be approved without special consideration
3. A majority of the Senate must vote to confirm the appointee before the appointment is valid
4. For controversial nominees who might be filibustered, 60 votes will be needed
5. Presidents may bypass Senatorial obstruction by making recess appointments
a. The president may make a temporary appointment if the Senate is in recess
b. The appointment expires at the end of the next session
c. Senators of both parties get angry when presidents bypass the confirmation process
D. The Removal Power
1. Throughout history some have argued that the president should not be able to dismiss anyone who has been approved by the senate without first receiving senate approval
a. Congress attempted to force Andrew Johnson to recognize this senatorial privilege in the Tenure of Office Act of 1867
b. The Tenure of Office Act required the president to get senatorial approval of a replacement before firing any officer
i. Johnson, a Tennessee Democrat, was the only Southern Senator to remain loyal to the Union during the Civil War
ii. Lincoln added Johnson to his “Union” ticket in 1864
iii. The Republican-controlled Congress feared Johnson would pack the cabinet with Democrats and Southern sympathizers
c. Johnson vetoed the bill
d. Congress overrode the veto
e. Johnson fired Secretary of War Stanton in defiance of the law
f. Congress impeached Johnson for the defiance
g. The law was basically ignored after Johnson survived the impeachment attempt
h. The law was repealed in 1887
i. A similar law passed in 1876 was declared unconstitutional in 1920
2. No president has ever followed this practice as many view it as a violation of the president’s independence
3. The general rule today is that the president may fire anyone he appoints with the exception of federal judges
4. The Supreme Court has also recognized Congress’ power to limit the president’s removal power when certain offices are created
a. Humphrey’s Executor v. United States (1935) upheld a limit on firing a member of the Federal Trade Commission only for “inefficiency, neglect of duty, or malfeasance in office”
b. The now defunct position of Independent Counsel was used to investigate presidential scandals for several decades after Watergate
E. Executive Privilege
1. Presidents since Eisenhower have argued that they may constitutionally refuse to disclose information to Congress or the judiciary
2. This executive privilege (like attorney-client, spousal, psychiatric, or confessional privileges in legal proceedings) usually extends to records of the president’s conversations with his closest advisors
III. Diplomatic and Military Powers
A. Diplomatic Powers
1. Treaties – formal agreements between two or more sovereign states
a. Treaties may cover a great variety of subjects
i. Defense (NATO)
ii. Trade (NAFTA)
iii. Environment (Kyoto)
iv. Travel
v. Law Enforcement/Extradition
vi. Standards of weights, measures, etc.
b. The President must submit any treaty to the Senate for its consent
c. Two-thirds of the Senators must vote for a treaty for it to be ratified (go into effect)
d. Treaties have the same weight in our legal system as an act of Congress
i. If a treaty and an act of Congress are in conflict, the courts will enforce whichever was passed most recently
ii. Many criticize this since it allows the President and Senate to legislate without the input of the House of Representatives
2. Executive Agreements – a pact between heads of states or their subordinates
a. Executive Agreements are legally binding and enforced by courts
b. Executive Agreements do not require the approval of the Senate
c. Executive Agreements typically arise from statutory authority, but in no event may they contradict an act of Congress
3. Recognition Power – when one country acknowledges the existence of and agrees to deal with another
a. This usually involves exchanging ambassadors
b. The United States refuses to recognize several countries
i. Cuba
ii. North Korea
iii. Iran
iv. Taiwan
c. Recognition can be a valuable means of support for fragile or new governments
d. Withdrawing an ambassador or recognition can put political pressure on a foreign government
B. Military Powers
1. The Constitution vests its military powers in the President as Commander in Chief
a. The Constitution does not specify whether the President should function as a “top general” that takes orders from Congress or as an independent authority
b. Presidents may send troops into combat even without a Congressional Declaration of War
i. These situations may be called “conflicts,” “police actions,” or simply “undeclared wars”
ii. The first president to engage in an undeclared war was John Adams, who fought naval battles against the French to protect American shipping
iii. Undeclared wars have grown more frequent in the twentieth century
1. The United States is now the world superpower and feels obligated to get involved in more areas
2. Declaring war officially might implicate some of our treaty obligations (i.e. United Nations charter)
3. Examples include Korea, Vietnam, Iraq, and others
iv. Congress typically consents to the operations in several ways
1. Passing a supporting resolution (i.e. Gulf of Tonkin Resolution)
2. Funding the war
2. The War Powers Act (1973) attempted to shift the balance of military power between the executive and legislative branches
i. The law was passed over Nixon’s veto
ii. No president has ever fully recognized the Constitutionality of the law or complied with its requirements
iii. The Supreme Court has never agreed to hear a case arising under the law
iv. The law requires the President to do several things once troops are engaged in combat
1. The President must report to Congress to describe and justify the operation within 48 hours of its start
2. The President must withdraw troops within 60 days unless Congress extends that time period
3. Congress may end the combat commitment at any time by passing a concurrent resolution
IV. Legislative and Judicial Powers
A. The president has several legislative and judicial powers that strengthen the system of checks and balances
B. Legislative Powers
1. Message Power
a. The President may recommend legislation to Congress (i.e. Budget Proposal)
b. The President may also deliver general comments to Congress (i.e. State of the Union Address)
c. Congress is free to ignore, amend, or approve the President’s suggestions
2. Veto Power
a. The President may veto any bill that has been passed by Congress, preventing it from becoming a law
i. Proposed Constitutional amendments are not subject to the President’s veto
ii. Non-binding concurrent resolutions are not subject to the President’s veto
b. Congress may override a president’s veto with the two-thirds concurrence of both houses
c. Vetoes are rare because the mere threat usually works to push Congress to compromise with the President
d. Overriding a veto is even rarer
3. Scheduling Power
a. The President may summon Congress for a special session
i. Truman was the last president to do so, in 1948
ii. Opportunities to use this power are now rare since Congress typically meets for parts of all twelve months every year
b. The President may prorogue (adjourn) a Congress if the two houses are unable to agree on a date to adjourn
c. No president has ever exercised the prorogue power
4. Line Item Veto
a. The Line Item Veto would allow a president to strike out parts of a bill while approving others
b. Many support this proposal because they believe the president would cut down on wasteful spending projects
c. Many oppose this proposal because they fear that presidents would use it as a weapon against political enemies by targeting their priorities
d. Congress passed a law to give the president a line item veto in 1996
e. The Supreme Court overturned that law because it was an unconstitutional delegation of legislative power
f. Many state governors, not restricted by the federal separation of powers, enjoy this power
C. Judicial Powers
1. The president may grant clemency (mercy) to anyone who has violated a federal law
2. This clemency may be in one of four forms
a. Pardon – legal forgiveness of a crime
i. Usually granted after a conviction, but that is not necessary
ii. Must be formally accepted to be effective, and they may be refused
iii. Accepting a pardon is usually understood to be an admission of guilt
iv. The pardon’s effect is to make it as if no crime had ever happened
b. Amnesty – blanket pardon offered to a large group of people
c. Commutation – reduce the penalty of a crime
d. Reprieve – postpone the execution of a sentence
3. This power of the president is absolute (it can not be challenged or overturned by anyone else)