Powers of the President

1. Powers of the President

2. “The idea that presidential power is fixed and static is a deep misnomer. It mischaracterizes both the long trajectory of presidential power over time and it also mischaracterizes what the founders themselves had in mind. They fully expected various branches of government to be pushing and pulling." William Howell, PhD, University of Chicago Author: Power Without Persuasion: The Politics Of Direct Presidential Action

3. Powers of the President “There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this...” Alexander Hamilton Federalist #67

4. Concerns at the Convention • The Framers were designing something completely new in the office of the President. No such thing had ever existed. • There were models for the legislature (British Parliament) but not the executive. • How would it work out? They could not predict.

5. Concerns at the Convention While they were unsure about what they were creating, the Framers knew what they DID NOT want! King George III of England

6. Concerns at the Convention • The President might use the militia to overpower state governments. • If the President shares treaty-making power with the Senate, then he might become “a tool of the Senate.” • Once elected, a President would arrange to stay in office through bribery, force, etc. • How should the President be chosen?

7. Concerns at the Convention • Main concern: How to give the chief executive just the right amount of power. • “Make him too weak: the Legislature will usurp his powers. Make him too strong: he will usurp the Legislature.” • Gouverneur Morris

8. Concerns at the Convention • Some, like Roger Sherman, wanted the President to be • “...nothing more than an institution for carrying the will of the legislature into effect...”

9. Concerns at the Convention Madison and Hamilton argued for a strong executive chosen independently of Congress. Their vision of a powerful president was written into the Constitution.

10. Powers of the President Constitutional Informal “Faithfully execute” the laws Commander-in-Chief Make treaties Pardon or reprieve Make appointments Veto laws Call Congress into session or adjourn a session. Power of persuasion Leadership Head of ever-expanding executive branch Deciding how to carry out laws

11. Constitutional powers Commander-in-chief of all the U.S. armed forces. Make treaties with foreign countries (with the “advice and consent of the Senate”). May grant a pardon or reprieve to prevent a trial or stop the punishment of someone.

12. Constitutional powers Appoints ambassadors, justices of the Supreme Court and other federal judges, and all other “officers” of the United States (with the “advice and consent of the Senate”). May call Congress into a special session. May also end (“adjourn”) a session of Congress.

13. Constitutional powers The President can veto legislation passed by Congress, sending it back to the house from which it originated. Congress can override the veto with a 2/3 vote of both houses. President Obama has only vetoed two pieces of legislation.

14. Constitutional duties Must regularly inform the Congress of the “State of the Union.” Must meet with (“receive”) ambassadors and leaders from other countries when they visit the United States. “Shall take care that the laws be faithfully executed.” (He must carry out the laws passed by Congress.)

15. Expansion of Executive Power While the Framers decided on a strong executive, the power of the President has grown over the years.

16. Expansion of Executive Power Powerful individuals have deliberately expanded the power of the executive at the expense of the legislature.

17. Expansion of Executive Power • The office was kept modest by the early Presidents. Washington, Adams and Jefferson made little effort to exercise power. • Washington cast only two vetoes, Adams and Jefferson cast none.

18. Expansion of Executive Power • Andrew Jackson’s time as President was marked by major political changes: • Expanding suffrage to include non-property owning white males. • Rapid westward expansion and addition of new states. • Increasing national tension over the issue of slavery. President Andrew Jackson 1829-1837

19. Expansion of Executive Power • Jackson was a war hero and extremely popular with the people. • He saw himself as a “Tribune of the People” (Protector of their interests and rights.) • He believed in a strong and independent President. • He vetoed more acts of Congress than all previous Presidents combined. None were overridden. • He vetoed laws because he didn’t like them, not just ones he thought were unconstitutional. President Andrew Jackson 1829-1837

20. Expansion of Executive Power • Jackson’s most significant veto was the renewal of the charter of the Second Bank of the U.S. • Jackson’s veto message had constitutional reasoning, but was also based on ideology and politics. • The bank veto: • signified the full involvement of the President in the legislative process. • asserted presidential authority against the power of the courts. • included language meant to appeal to Jackson’s voter base – the small farmer and working man.

21. Expansion of Executive Power After Jackson left office, Congress quickly reasserted its power and – except for Lincoln during the Civil War – no President challenged Congress for superiority until the mid-20th Century.

22. Expansion of Executive Power • The major expansion of the role of the federal government during the Great Depression and World War II led to increased Presidential powers. • Since the 1930s, the chief executive has been powerful no matter who was President.

23. Expansion of Executive Power The President has better access to mass media than members of Congress. The President is more able to attract public attention. The President can use the media to build support for his policies. Bully Pulpit

24. Expansion of Executive Power Wars, disasters and other events requires fast action. A legislature cannot provide such leadership. Frequent need for decisive action in national emergencies. The ability of a single, commanding chief executive has strengthened Presidential power.

25. Expansion of Executive Power The President’s role as chief executive gives him authority to execute laws with considerable discretion. People have demanded a larger role from the federal government. American social and economic life has become more complex.

26. Expansion of Executive Power Laws are usually only basic outlines for public policy. Congress has passed thousands of laws. Congress must delegate authority to the President for carrying out the laws.

27. Expansion of Executive Power The Constitution gives the President specific diplomatic powers. Increased importance of foreign affairs. The President has more power than Congress in relating to other nations.

28. Informal Powers • Greatest sources of presidential power: politics and public opinion. • The president’s power to persuade the people and other politicians is the key to his success. “Whoever moulds public sentiment, goes deeper than he who enacts statutes, or pronounces judicial decisions.” Abraham Lincoln

29. Informal Powers • Americans increasingly look to the president for leadership, not just in crises. • Since the 1930s, Congress has conferred to the President broad grants of authority to achieve general goals. Getting “the treatment” from LBJ.

30. Informal Powers • The Power to Persuade: The Three Audiences • 1. Fellow politicians and leaders • Reputation among colleagues determines how much respect a president gets. • If he is respected he will be effective. • 2.Party activists and officeholders (the “partisan grassroots”) • Want the president to promote their principles • Look to him to help them win reelection • 3. The Public • Publics (pl.) – many different interests • Presidents have become increasingly cautious about what they say in public.

31. Informal Powers • Popularity and Influence • President’s goal: turn his popularity into congressional support for the president’s policies. • “Coattails effect” has declined in recent years and is small today. • A president’s personal popularity can have a strong effect on whether his program is passed by Congress. • Members know is it risky to strongly oppose a popular president’s policies because of the feeling that politicians rise and fall together.

32. Power to Say “No” U.S. Constitution, Article I, Section 7 “If he approve [the bill] he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall…proceed to reconsider it.” • VETO • Veto message sent within ten days of the bill’s passage • Pocket veto – If a bill is not signed within ten days, and Congress adjourns during those ten days, the bill fails to become a law. • Congress rarely overrides vetoes.

33. Power to Say “No” • THE LINE ITEM VETO • A line-item veto gives the executive the power to veto sections of bills without rejecting the whole thing. • Many U.S. governors have the power of the line-item veto. • In 1996, Congress passed the Line-Item Veto Act giving the U.S. president this power. • President Clinton used the power to cancel parts of the Balanced Budget Act of 1997.

34. Power to Say “No” • CLINTON v. CITY OF NEW YORK • QUESTION: Did the Line-Item Veto Act of 1996 violate the Constitution’s carefully constructed separation of powers, which gives Congress the power to create legislation? Yes. Both the law and Clinton’s actions were unconstitutional. The line-item veto is a way of “amending” a law, which the president does not have the authority to do.

35. Power to Say “No” • EXECUTIVE PRIVILEGE • Executive privilege: The right of the president to keep private the communications between himself and his principle advisors. • Two reasons why presidents defend executive privilege: • Separation of powers (branches should not interfere with each other) • Guarantee of privacy will ensure candor in communication. If the president and his Secretary of Defense have a private conversation about the progress of a war, is the president obliged to reveal the content of their discussion to Congress on demand?

36. Power to Say “No” • EXECUTIVE PRIVILEGE • Not explicitly mentioned in the Constitution. • Was first used by George Washington who refused to turn over documents related to the Jay Treaty to the House. • Over the years, the Supreme Court has not been uniform in its decisions. • Biggest recent case: U.S. v Nixon (1974) Executive privilege is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” It is “a necessary corollary of the executive function vested in the President by Article II of the Constitution.” United States v. Nixon

37. Power to Say “No” • EXECUTIVE PRIVILEGE: • UNITED STATES V. NIXON (1974) • During the Watergate investigation, a grand jury issued an indictment against seven White House aides. • The special prosecutor and the defendant’s lawyer sought to obtain taped recordings of White House conversations. • President Nixon refused to hand over the tapes, claiming the right to executive privilege.

38. Power to Say “No” • EXECUTIVE PRIVILEGE: • UNITED STATES V. NIXON (1974) • QUESTION: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review? NO! The president does not have absolute, unqualified executive privilege. “The fundamental demands of due process of law in the fair administration of justice" limits the president’s privilege to keep information confidential. The president can be required to reveal information needed in a criminal investigation.

39. Power to Say “No” • EXECUTIVE PRIVILEGE: • NIXON v. FITZGERALD (1982) • A. Ernest Fitzgerald was a civilian working for the Air Force. In 1968, he testified before Congress regarding inefficiencies and cost overruns in the production of the C-5A transport jet. • One year later, Nixon fired him. • The Civil Service Commission investigated the firing and ruled that the firing was unjust, so Fitzgerald sued Nixon.

40. Power to Say “No” • EXECUTIVE PRIVILEGE: • NIXON v. FITZGERALD (1982) • QUESTION: Does the president have immunity from civil prosecution when carrying out his official duties? YES. The president "is entitled to absolute immunity from damages liability predicated on his official acts.“ This immunity is required by the doctrine of separation of powers.

41. Power to Say “No” • EXECUTIVE PRIVILEGE: • CLINTON v. JONES (1982) • Paula Jones was an employee of the Arkansas state government. She alleged that then-governor Bill Clinton made “abhorrent” sexual advances toward her. She claimed that she repeatedly spurned his advances and was eventually punished by her supervisors. • During Clinton’s term as president, Jones filed a civil lawsuit against him. • Clinton sought to have the suit dropped on the grounds of presidential immunity, claiming that it distracted him from his presidential duties.

42. Power to Say “No” • EXECUTIVE PRIVILEGE: • CLINTON v. JONES (1982) • QUESTION: Is a sitting president entitled to absolute immunity from civil litigation arising from actions prior to taking office? NO. The Constitution does not protect the president from civil litigation regarding actions taken before he became president.

43. Power to Say “No” • EXECUTIVE PRIVILEGE: SUMMARY • The President has a legitimate need to keep secret information, especially in the interest of national security. • Used since the beginning: Washington refused to share sensitive documents with Congress when they were investigating the massacre of army troops by Native Americans. • Doctrine of separation of powers: one branch does not have the right to inquire about the internal affairs of another branch. • There is not an “absolute unqualified Presidential privilege of immunity.” (United States v. Nixon)

44. EXECUTIVE ORDERS • Executive order: An official document through which the President manages the operations of the federal government. • The power to issue executive orders and proclamations derives from the Constitution: • Power of commander-in-chief • Power to faithfully execute the laws. • “Executive power shall be vested in the President” • It also derives from any statutory authority granted to the President by Congress. • When based on legitimate authority, they have the force of law.

45. EXECUTIVE ORDERS • Executive orders enforce the Constitution, federal statutes, or treaties. (Example: National Defense Resources Preparedness – Reorganizes how resources would be managed in the nation’s defense under the Defense Production Act of 1950.) • They can also establish or modify rules and practices of executive departments and agencies. (Example: Establishing Hurricane Sandy rebuilding task force to coordinate the work of federal agencies.)

46. EXECUTIVE ORDERS • First executive order: 1793 – George Washington issued a proclamation requiring citizens to remain neutral in hostilities between England and France. • Lincoln: Emancipation Proclamation and suspension of habeas corpus. • Use of executive orders was greatly expanded by Teddy Roosevelt. • Woodrow Wilson expanded emergency powers during WWI and issued over 1,800 executive orders. “My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.”

47. EXECUTIVE ORDERS • FDR was given wide latitude by Congress to implement New Deal programs. • Youngstown Sheet & Tube Co. v Sawyer (1952) • Truman ordered the Commerce Dept. to take over operations of this important steel producer during WWII. • SCOTUS ruled in favor of the steel company. • President did not have Constitutional or statutory authority. • Presidential power cannot be implied from • the aggregate of his Constitutional powers.

48. SIGNING STATMENTS • Signing statement: A presidential document that reveals what the president thinks of a new law and how it ought to be enforced. • They are the President’s interpretation of the laws passed by Congress. • First used by James Monroe. • Used much more frequently today. (Reagan – 71; GHW Bush – 141; Clinton- 105; GW Bush – 750) • They are used by presidents to assert their authority against Congress. • Members of Congress have criticized them as a line-item veto. The Democratic-controlled 110th Congress considered challenging their constitutionality.

49. War Powers Resolution In 1964, after Vietnamese submarines torpedoed the U.S.S. Maddox off the coast of Vietnam, President Johnson ordered military strikes. Congress fully supported his decision (Senate 88 to 2 and House 416 to 0)

50. War Powers Resolution The U.S. military fought in Vietnam from 1964 until 1973. By the early 70s, America had grown very frustrated with the war. Congress reflected that frustration.