The writers of the Constitution had no models to follow when they created the presidency of the United States. Nowhere else in the world was there an elected head of state. What the founders did not want was a king. The two initial plans considered by the founders - the Virginia and New Jersey plans - both called for an executive elected by Congress. Under such plans our political system would be very different from what it is today. As it happened, other delegates, especially those who had witnessed the need for a strong leader in the Revolutionary Army, believed a strong executive would be necessary for the new republic. The delegates, after much debate, created a chief executive who had enough powers granted in the Constitution to balance those of Congress.
In this chapter, after looking at who can become president and at the process involved, we examine closely the nature and extent of the constitutional powers held by the president.
WHO CAN BECOME PRESIDENT?
The president receives a salary of $400,000, plus $169,000 for expenses and a vast array of free services, beginning with residence in the White House. The requirements for becoming president, as outlined in Article II, Section 1, of the Constitution, are not overwhelmingly stringent:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
A "Natural Born Citizen"
The only question that arises about these qualifications relates to the term natural born Citizen. Does that mean only citizens born in the United States and its territories? What about a child born to a U.S. citizen visiting or living in another country? Although the question has not been dealt with directly by the Supreme Court, it is reasonable to expect that someone would be eligible if her or his parents were Americans.
These questions were debated when George Romney, who was born in Chihuahua, Mexico, made a serious bid for the Republican presidential nomination in the 1960s. The issue came up again when opponents of President Barack Obama claimed that Obama was not a natural born citizen. In reality, Obama was born in Honolulu, Hawaii, in 1961, two years after Hawaii became a state. Those who disputed Obama's birth claimed that the short-form birth certificate released by the Obama campaign was a forgery - despite the fact that Obama's birth was also recorded by two Honolulu newspapers. Agitation by the "birthers," as they came to be called, subsided in 2011 after the White House released Obama's long-form birth certificate, which was endorsed as valid by every relevant Hawaiian official, Republican and Democrat.
Presidential Characteristics
The American dream is symbolized by the statement that "anybody can become president of this country." It is true that in modern times, presidents have included a haberdasher (Harry Truman - for a short period of time), a peanut farmer (Jimmy Carter), and an actor (Ronald Reagan). But if you examine the list of presidents, you will see that the most common previous occupational field of presidents in this country has been the law. Out of forty-four presidents, twenty-seven have been lawyers, and many have been wealthy.
Although the Constitution states that the minimum-age requirement for the presidency is thirty-five years, most presidents have been much older than that when they assumed office. John F. Kennedy, at the age of forty-three, was the youngest elected president, and the oldest was Ronald Reagan, at age sixty-nine. The average age at inauguration has been fifty-four. There has clearly been a demographic bias in the selection of presidents. All have been male, white, and from the Protestant tradition, except for John F. Kennedy, a Roman Catholic, and Barack Obama, an African American. Should voters care about the religion of a presidential candidate?
The Process of Becoming President
Major and minor political parties nominate candidates for president and vice president at national conventions every four years. The nation's voters do not elect a president and vice president directly but rather cast ballots for presidential electors, who then vote for president and vice president in the electoral college.
Because victory goes to the candidate with a majority in the electoral college, it is conceivable that someone could be elected to the office of the presidency without having a plurality of the popular vote cast. Indeed, on four occasions, candidates won elections even though their major opponents received more popular votes. One of those elections occurred in 2000, when George W. Bush won the electoral college vote and became president even though his opponent, Al Gore, won the popular vote. In elections in which more than two candidates were running for office, many presidential candidates have won with less than 50 percent of the total popular votes cast for all candidates - including Abraham Lincoln, Woodrow Wilson, Harry Truman, John F. Kennedy, Richard Nixon, and, in 1992, Bill Clinton.
Thus far, on two occasions the electoral college has failed to give any candidate a majority. At this point, the election is thrown into the House of Representatives. The president is then chosen from among three candidates having the most electoral college votes. In 1800, Thomas Jefferson and Aaron Burr tied in the electoral college. This happened because the Constitution had not been explicit in indicating which of the two electoral votes was for president and which was for vice president. In 1804, the Twelfth Amendment clarified the matter by requiring that the president and vice president be chosen separately. In 1824, the House again had to make a choice, this time among William H. Crawford, Andrew Jackson, and John Quincy Adams. It chose Adams, even though Jackson had more electoral and popular votes.
THE MANY ROLES OF THE PRESIDENT
The Constitution speaks briefly about the duties and obligations of the president. Based on this brief list of powers and on the precedents of history, the presidency has grown into a very complicated job that requires balancing at least five constitutional roles. These are (1) head of state, (2) chief executive, (3) commander in chief of the armed forces, (4) chief diplomat, and (5) chief legislator of the United States. Here we examine each of these significant presidential functions, or roles. It is worth noting that one person plays all these roles simultaneously and that the needs of the roles may at times come into conflict.
Head of State
Every nation has at least one person who is the ceremonial head of state. In most democratic nations, the role of head of state is given to someone other than the chief executive, who leads the executive branch of government. In Britain, for example, the head of state is the queen. In much of Europe, the head of state is a relatively powerless president. The prime minister is the chief executive. But in the United States, the president is both chief executive and head of state. According to William Howard Taft, as head of state and president symbolizes the "dignity and majesty" of the American people.
The president, as head of state, engages in a number of activities that are largely symbolic or ceremonial. Some students of the American political system believe that having the president serve as both the chief executive and head of state drastically limits the time available to do "real" work. Not all presidents have agreed with this conclusion, however - particularly those presidents who have skillfully blended these two roles with their role as a politician. Being head of state gives the president tremendous public exposure, which can be an important asset in a campaign for reelection. When that exposure is positive, it helps the president deal with Congress over proposed legislation and increases the chances of being reelected - or getting the candidates of the president's party elected.
Chief Executive
According to the Constitution, "The executive Power shall be vested in a President of the United States of America... [H]e may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices... and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Officers of the United States... [H]e shall take Care that the Laws be faithfully executed." As chief executive, the president is constitutionally bound to enforce the acts of Congress, the judgments of federal courts, and treaties signed by the United States. The duty to "faithfully execute" the laws has been a source of constitutional power for presidents.
The Powers of Appointment and Removal. To assist in the various tasks of the chief executive, the president has a federal bureaucracy, which currently consists of 2.2 million federal civilian employees, not counting the U.S. Postal Service (650,000 employees). You might think that the president, as head of the largest bureaucracy in the United States, wields enormous power. The president, however, only nominally runs the executive bureaucracy. Most government positions are filled by civil service employees, who generally gain government employment through a merit system rather than presidential appointment. Therefore, even though the president has important appointment power, it is limited to cabinet and subcabinet jobs, federal judgeships, agency heads, and several thousand lesser jobs - about eight thousand positions in total.
This means that most of the 2.85 million federal employees owe no political allegiance to the president. They are more likely to owe loyalty to congressional committees or to interest groups representing the sector of the society that they serve.
The president's power to remove from office those officials who are not doing a good job or who do not agree with the president is not explicitly granted by the Constitution and has been limited. In 1926, however, a Supreme Court decision prevented Congress from interfering with the president's ability to fire those executive-branch officials whom the president had appointed with Senate approval. There are ten agencies whose directors the president can remove at any time. These agencies include the Commission on Civil Rights, the Environmental Protection Agency, the General Services Administration, and the Small Business Administration. In addition, the president can remove all heads of cabinet departments, all individuals in the Executive Office of the President, and all of the political appointees in the executive departments.
Harry Truman spoke candidly of the difficulties a president faces in trying to control the executive bureaucracy. On leaving office, he referred to the problems that Dwight Eisenhower, as a former general of the army, was going to have: "He'll sit here and he'll say do this! do that! and nothing will happen. Poor Ike - it won't be a bit like the Army. He'll find it very frustrating."
The Power to Grant Reprieves and Pardons. Section 2 of Article II of the Constitution gives the president the power to grant reprieves and pardons for offenses against the United States except in cases of impeachment. All pardons are administered by the Office of the Pardon Attorney in the Department of Justice.
The Supreme Court upheld the president's power to grant reprieves and pardons in a 1925 case concerning a pardon granted by the president to an individual convicted of contempt of court. A federal circuit court had contended that only judges had the authority to convict individuals for contempt of court when court orders were violated and that the courts should be free from interference by the executive branch. The Supreme Court simply stated that the president could grant reprieves or pardons for all offenses "either before trial, during trial, or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress."
President Andrew Johnson set the record for the largest number of persons ever pardoned in 1868 when he issued a blanket amnesty to all former Confederate soldiers. In 1974, in a controversial decision, President Gerald Ford pardoned former president Richard Nixon for his role in the Watergate affair before any charges were brought in court. In 1977, President Jimmy Carter issued a blanket pardon to Vietnam War-era draft resisters, a group that probably included more than 100,000 persons.
Commander in Chief
The president, according to the Constitution, "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." In other words, the armed forces are under civilian, rather than military, control.
Wartime Powers. Those who wrote the Constitution had George Washington in mind when they made the president the commander in chief. Although we do not expect our president to lead the troops into battle, presidents as commander in chief have wielded dramatic power. Harry Truman made the awesome decision to drop atomic bombs on Hiroshima and Nagasaki in 1945 to force Japan to surrender and thus bring World War II to an end. Lyndon Johnson ordered bombing missions against North Vietnam in the 1960s, and he personally selected some of the targets. Richard Nixon decided to invade Cambodia in 1970. Ronald Reagan sent troops to Lebanon and Grenada in 1983 and ordered U.S. fighter planes to attack Libya in 1986. George H. W. Bush sent troops to Panama in 1989 and to the Middle East in 1990. Bill Clinton sent troops to Haiti in 1994 and to Bosnia in 1995, ordered missile attacks on alleged terrorist bases in 1998, and sent American planes to bomb Serbia in 1999. George W. Bush ordered the invasion of Afghanistan in 2001 and of Iraq in 2003, and most recently, Barack Obama ordered additional troops into Afghanistan in 2009 and authorized air strikes in Libya in 2011.
The president is the ultimate decision maker in military matters. Everywhere the president goes, so too goes the "football" - a briefcase filled with all of the codes necessary to order a nuclear attack. Only the president has the power to order the use of nuclear force.
As commander in chief, the president probably exercises more authority than in any other role. Constitutionally, Congress has the sole power to declare war, but the president can send the armed forces into situations that are certainly the equivalent of war. Harry Truman dispatched troops to Korea in 1950. Kennedy, Johnson, and Nixon waged an undeclared war in Southeast Asia, where more than 58,000 Americans were killed and 300,000 were wounded. In neither of these situations had Congress declared war.
Power over the National Guard. One of the president's powers as commander in chief is the right to assume authority over National Guard units - that is, state militias. Throughout American history, presidents have "nationalized" the Guard to handle domestic problems such as natural disasters or severe social disturbances, including strikes or urban riots. President George W. Bush sent 6,000 members of the National Guard to the Mexican border in 2006-2008 to assist the Border Patrol, and in 2010 President Obama sent 1,200 Guard troops to the border for the same purpose.
The president also has the ability to send National Guard units abroad to supplement the regular armed forces. Both Bush and Obama sent Guard forces abroad on a massive scale. In 2005, National Guard troops comprised a larger percentage of frontline fighting forces than in any war in U.S. history - about 43 percent in Iraq and 55 percent in Afghanistan. Since then, the number of National Guard troops sent abroad has declined.
The War Powers Resolution. In an attempt to gain more control over such military activities, in 1973 Congress passed the War Powers Resolution - over President Nixon's veto - requiring that the president consult with Congress when sending American forces into action. Once they are sent in, the president must report to Congress within forty-eight hours. Unless Congress approves the use of troops within sixty days or extends the sixty-day time limit, the forces must be withdrawn.
In spite of the War Powers Resolution, the powers of the president as commander in chief are more extensive today than they were in the past. The so-called war on terrorism, which began after the terrorist attacks of September 11, 2001, led to an especially notable increase in presidential powers. Many people believe that recent administrations have claimed powers that were excessive or even unconstitutional.
Chief Diplomat
The Constitution gives the president the power to recognize foreign governments, to make treaties with the advice and consent of the Senate, and to make special agreements with other heads of state that do not require congressional approval. In addition, the president nominates U.S. ambassadors to other countries. As chief diplomat, the president dominates American foreign policy, a role that has been supported many times by the Supreme Court.
Diplomatic Recognition. An important power of the president as chief diplomat is that of diplomatic recognition, or the power to recognize - or to refuse to recognize - foreign governments. In the role of ceremonial head of state, the president has always received foreign diplomats. In modern times, the simple act of receiving a foreign diplomat has been equivalent to accrediting the diplomat and officially recognizing his or her government. Such recognition of the legitimacy of another country's government is a prerequisite to diplomatic relations or treaties between that country and the United States.
Deciding when to recognize a foreign power is not always simple. The United States, for example, did not recognize the Soviet Union until 1933 - sixteen years after the Russian Revolution of 1917. It was only after all attempts to reverse the effects of that revolution - including military invasion of Russia and diplomatic isolation - had proved futile that Franklin D. Roosevelt extended recognition to the Soviet government. In December 1978, long after the Communist victory in China in 1949, President Jimmy Carter granted official recognition to the People's Republic of China.
Proposal and Ratification of Treaties. The president has the sole power to negotiate treaties with other nations. These treaties must be presented to the Senate, where they must be approved by a two-thirds vote. After ratification, the president can approve the treaty as adopted by the Senate. Approval poses a problem when the Senate has tacked on substantive amendments or reservations to a treaty, particularly when such changes may require reopening negotiations with the other signatory governments. Sometimes, a president may decide to withdraw a treaty if the senatorial changes are too extensive - as Woodrow Wilson did with the Versailles Treaty in 1919, which concluded World War I. Wilson believed that the senatorial reservations would weaken the treaty so much that it would be ineffective.
President Jimmy Carter (1977-1981) was successful in lobbying for the treaties that provided for the return of the Panama Canal to Panama by the year 2000 and neutralizing the canal. President Bill Clinton won a major political and legislative victory in 1993 by persuading Congress to ratify the North American Free Trade Agreement (NAFTA). In doing so, he had to overcome opposition from Democrats and most of organized labor.
Before September 11, 2001, President George W. Bush indicated his intention to steer the United States in a unilateral direction on foreign policy. After the terrorist attacks of September 11, 2001, however, Bush sought cooperation from U.S. allies in the war on terrorism. Bush's return to multilateralism was exemplified in the signing of a nuclear weapons reduction treaty with Russia in 2002. Nonetheless, his attempts to gain international support for a war against Iraq to overthrow that country's government were not as successful as he had hoped.
In April 2010, President Obama and then-Russian president Dmitry Medvedev signed the new START Treaty, a follow-up to earlier arms control treaties. The ten-year pact will cut the number of nuclear warheads allowed to each party by 30 percent, to 1,550 warheads. The number of permitted missile launchers will be cut in half. The treaty includes a verification process. The U.S. Senate ratified the treaty in December 2010.
Executive Agreements. Presidential power in foreign affairs is enhanced greatly by the use of executive agreements made between the president and other heads of state. Such agreements do not require Senate approval, although the House and the Senate may refuse to appropriate the funds necessary to implement them. Whereas treaties are binding on all succeeding administrations, executive agreements require each new president's consent to remain in effect.
Among the advantages of executive agreements are speed and secrecy. The former is essential during a crisis. The latter is important when the administration fears that open senatorial debate may be detrimental to the best interests of the United States or to the interests of the president. There have been far more executive agreements (about 9,000) than treaties (1,300). Many executive agreements contain secret provisions calling for American military assistance or other support.
Chief Legislator
Constitutionally, presidents must recommend to Congress legislation that they judge necessary and expedient. Not all presidents have wielded their powers as chief legislator in the same manner. Some presidents have been almost completely unsuccessful in getting their legislative programs implemented by Congress. Presidents Franklin Roosevelt and Lyndon Johnson, however, saw much of their proposed legislation put into effect.
Creating the Congressional Agenda. In modern times, the president has played a dominant role in creating the congressional agenda. In the president's annual State of the Union message, which is required by the Constitution (Article II, Section 3) and is usually given in late January shortly after Congress reconvenes, the president presents a legislative program. The message gives a broad, comprehensive view of what the president wishes the legislature to accomplish during its session. It is as much a message to the American people and the world as it is to Congress. Its impact on public opinion can determine the way in which Congress responds to the president's agenda.
Since 1913, the president has delivered the State of the Union message in a formal address to Congress. Today, this address is one of the great ceremonies of American governance, and many customs have grown up around it. For example, one cabinet member, the "designated survivor," stays away to ensure that the country will always have a president, even if someone manages to blow up the Capitol building. Everyone gives the president an initial standing ovation out of respect for the office, but this applause does not necessarily represent support for the individual who holds the office. During the speech, senators and House members either applaud or remain silent to indicate their opinion of the policies that the president announces.
Getting Legislation Passed. The president can propose legislation, but Congress is not required to pass - or even introduce - any of the administration's bills. How, then, does the president get those proposals made into law? One way is by exercising the power of persuasion. The president writes to, telephones, and meets with various congressional leaders. He or she makes public announcements to influence public opinion. Finally, as head of the party, the president exercises leadership over the party's members in Congress. A president whose party holds a majority in both chambers of Congress usually has an easier time getting legislation passed than does a president who faces a hostile Congress.
Saying No to Legislation. The president has the power to say no to legislation through use of the veto, by which the White House returns a bill unsigned to Congress with a veto message attached. Because the Constitution requires that every bill passed by the House and the Senate be sent to the president before it becomes law, the president must act on each bill:
1. If the bill is signed, it becomes law.
2. If the bill is not sent back to Congress after ten congressional working days, it becomes law without the president's signature.
3. The president can reject the bill and send it back to Congress with a veto message setting forth objections. Congress then can change the bill, hoping to secure presidential approval, and repass it. Or Congress can simply reject the president's objections by overriding the veto with a two-thirds roll-call vote of the members present in both the House and the Senate.
4. If the president refuses to sign the bill and Congress adjourns within ten working days after the bill has been submitted to the president, the bill is killed for that session of Congress. This is called a pocket veto. If Congress wishes the bill to be reconsidered, the bill must be reintroduced during the following session.
Presidents employed the veto power infrequently until after the Civil War, but it has been used with increasing vigor since then. The total number of vetoes from George Washington's administration through the end of George W. Bush's second term in office was 2,562, with about two-thirds of those vetoes being exercised by Grover Cleveland, Franklin Roosevelt, Harry Truman, and Dwight Eisenhower.
George W. Bush was the first president since Martin Van Buren (1837-1841) to serve a full term in office without exercising the veto power. Bush, who had the benefit of a Republican Congress, did not veto any legislation during his first term. Only in the summer of 2006 did Bush finally issue a veto, saying "no" to stem-cell research legislation passed by Congress. After the Democrats took control of Congress in January 2007, however, the president issued eleven vetoes, four of which were overridden. President Obama, who for two years also enjoyed a Congress dominated by his own party, issued only two vetoes through Election Day 2012.
The Line-Item Veto. Ronald Reagan lobbied strenuously for Congress to give another tool to the president - the line-item veto, which would allow the president to veto specific spending provisions of legislation that was passed by Congress. Reagan saw the line-item veto as the only way that he could control overall congressional spending. In 1996, Congress passed the Line Item Veto Act, which provided for the line-item veto. President Clinton used the line-item veto on several occasions, but the act was challenged in court. In 1998, by a six-to-three vote, the United States Supreme Court agreed with the veto's opponents and overturned the act. The Court stated that "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes."
Congress's Power to Override Presidential Vetoes. A veto is a clear-cut indication of the president's dissatisfaction with congressional legislation. Congress, however, can override a presidential veto, although it rarely exercises this power. Consider that two-thirds of the members of each chamber who are present must vote to override the president's veto in a roll-call vote. This means that if only one-third plus one of the members voting in one of the chambers of Congress do not agree to override the veto, the veto holds. In American history, only about 7 percent of all vetoes have been overridden.
THE PRESIDENT AS PARTY CHIEF AND SUPERPOLITICIAN
Presidents by no means are above political partisanship, and one of their many roles is that of chief of party. Although the Constitution says nothing about the function of the president within a political party (the mere concept of political parties was abhorrent to most of the authors of the Constitution), today presidents are the actual leaders of their parties.
The President as Chief of Party
As party leader, the president chooses the national committee chairperson and can try to discipline party members who fail to support presidential policies. One way of exerting political power within the party is through patronage - appointing individuals to government or public jobs. This power was more extensive in the past, before the establishment of the civil service in 1883, but the president still retains important patronage power. As we noted earlier, the president can appoint several thousand individual jobs in the cabinet, the White House, and the federal regulatory agencies.
Perhaps the most important partisan role that the president played in the 1990s and early 2000s has been that of fund-raiser. The president is able to raise large sums for the party through appearances at dinners, speaking engagements, and other social occasions. President Clinton may have raised more than half a billion dollars for the Democratic Party during his two terms. President George W. Bush was even more successful than Clinton. Barack Obama's spectacular success in raising funds for his presidential campaigns indicates that he has carried on this fund-raising tradition.
Presidents have a number of other ways of exerting influence as party chief. The president may make it known that a particular congressperson's choice for federal judge will not be appointed unless that member of Congress is more supportive of the president's legislative program. The president may agree to campaign for a particular program or for a particular candidate. Presidents also reward loyal members of Congress with support for the funding of local projects, tax breaks for regional industries, and other forms of "pork."
Constituencies and Public Approval
All politicians worry about their constituencies, and presidents are no exception. Presidents are also concerned with public approval ratings.
Presidential Constituencies. Presidents have many constituencies. In principle, they are beholden to the entire electorate - the public of the United States - even those who did not vote. Presidents are certainly beholden to their party, because its members helped to put them in office. The president's constituencies also include members of the opposing party whose cooperation the president needs. Finally, the president must take into consideration a constituency that has come to be called the Washington community (also known as those "inside the beltway"). This community consists of individuals who - whether in or out of political office - are intimately familiar with the workings of government, thrive on gossip, and measure on a daily basis the political power of the president.
Public Approval. All of these constituencies are impressed by presidents who maintain a high level of public approval, partly because doing so is very difficult to accomplish. Presidential popularity, as measured by national polls, gives the president an extra political resource to use in persuading legislators or bureaucrats to pass legislation.
President George W. Bush enjoyed spectacularly high approval ratings immediately after the terrorist attacks of 9/11. This popularity allowed him to win national security legislation such as the USA Patriot Act. It also allowed him to undertake a robust foreign policy that included the overthrow of the Afghan government and the occupation of Iraq. Bush's popularity declined steadily after 9/11. Obama's initial popularity figures were also very high. Much of his support in early 2009, however, came from Republicans, and it was bound to dissipate. By the beginning of 2010, the public was almost evenly split in their opinions of Obama, and those attitudes remained constant through 2012. True, in some periods - late 2010 and the last half of 2011 - his approval rate fell into the low forties, and at other times - the first part of 2011 - his popularity rose above 50 percent.
These were variations within relatively narrow margins, however. They suggested that the voters remained split down the middle and that the 2012 elections would be close. Clearly, the state of the economy would have a major effect on the outcome of that election.
"Going Public." Since the early 1900s, presidents have spoken more to the public and less to Congress. In the 1800s, only 7 percent of presidential speeches were addressed to the public. Since 1900, 50 percent have been addressed to the public. Presidents frequently go over the heads of Congress and the political elites, taking their cases directly to the people.
This strategy, dubbed "going public," gives the president additional power through the ability to persuade and manipulate public opinion. By identifying their own positions so clearly, presidents can weaken the legislators' positions. In times when the major political parties are high polarized, however, the possibility of compromise with the opposition party may actually be reduced if the president openly "nails his colors to the mast."
PRESIDENTIAL POWERS
Presidents have at their disposal a variety of special powers and privileges not available in the other branches of the U.S. government. The powers of the president discussed earlier in this chapter in the section on the roles of the president are called constitutional powers, because their basis lies in the Constitution. In addition, Congress has established by law, or statute, numerous other presidential powers - such as the ability to declare national emergencies. These are called statutory powers. Both constitutional and statutory powers have been labeled the expressed powers of the president, because they are expressly written into the Constitution or into law.
Presidents also have what have come to be known as inherent powers. These depend on the statements in the Constitution that "the executive Power shall be vested in a President" and that the president should "take Care that the Laws be faithfully executed." The most common example of inherent powers is those emergency powers invoked by a president during wartime. Franklin Roosevelt, for example, used his inherent powers to move the Japanese and Japanese Americans living in the United States into internment camps for the duration of World War II. President George W. Bush often justified expanding the powers of his presidency by saying that such powers were necessary to fight the war on terrorism. Additional powers enjoyed by the president include (1) emergency powers, (2) executive orders, (3) executive privilege, and (4) signing statements.
Emergency Powers
If you were to read the Constitution, you would find no mention of the additional powers that the executive office may exercise during national emergencies. Indeed, the Supreme Court has stated that an "emergency does not create power." But it is clear that presidents have made strong use of their inherent powers during times of emergency, particularly in the realm of foreign affairs. The emergency powers of the president were first enunciated in the Supreme Court's decision in United States v. Curtiss-Wright Export Corp. In that case, President Franklin Roosevelt, without authorization by Congress, ordered an embargo on the shipment of weapons to two warring South American countries. The Court recognized that the president may exercise inherent powers in foreign affairs and that the national government has primacy in these affairs.
Examples of emergency powers are abundant, coinciding with crises in domestic and foreign affairs. Abraham Lincoln suspended civil liberties at the beginning of the Civil War (1861-1865) and called the state militias into national service. These actions and his subsequent governance of conquered areas - and even of areas of northern states - were justified by claims that they were essential to preserve the Union. Franklin Roosevelt declared an "unlimited national emergency" following the fall of France in World War II (1939-1945) and mobilized the federal budget and the economy for war.
President Harry Truman authorized the federal seizure of steel plants and their operation by the national government in 1952 during the Korean War. Truman claimed that he was using his inherent emergency power as chief executive and commander in chief to safeguard the nation's security, as an ongoing strike by steelworkers threatened the supply of weapons to the armed forces. The Supreme Court did not agree, holding that the president had no authority under the Constitution to seize private property or to legislate such action. According to legal scholars, this was the first time a limit had been placed on the exercise of the president's emergency powers.
Executive Orders
Congress allows the president (as well as administrative agencies) to issue executive orders that have the force of law. These executive orders can do the following: (1) enforce legislative statutes, (2) enforce the Constitution or treaties with foreign nations, and (3) establish or modify rules and practices of executive administrative agencies.
An executive order, then, represents the president's legislative power. The only apparent requirement is that under the Administrative Procedure Act of 1946, all executive orders must be published in the Federal Register, a daily publication of the U.S. government. Executive orders have been used to implement national affirmative action regulations, to restructure the White House bureaucracy, and, under emergency conditions, to ration consumer goods and to administer wage and price controls. They have also been used to classify government information as secret, to regulate the export of restricted items, and to establish military tribunals for suspected terrorists.
President George W. Bush made use of such orders in executing the war on terrorism, and more generally in expanding presidential powers. President Obama's executive orders have covered such matters as regulating the pay and practices of members of the executive branch, raising the fuel efficiency standards of cars and trucks, permitting federal grants to international organizations that support abortion, and lifting restrictions on the federal funding of embryonic stem-cell research.
Executive Privilege
Another inherent executive power that has been claimed by presidents concerns the right of the president and the president's executive officials to withhold information from or refuse to appear before Congress or the courts. This is called executive privilege, and it relies on the constitutional separation of powers for its basis.
Presidents have frequently invoked executive privilege to avoid having to disclose information to Congress about actions of the executive branch. Executive privilege rests on the assumption that a certain degree of secrecy is essential to national security. Critics of executive privilege believe that it can be used to shield from public scrutiny actions of the executive branch that should be open to Congress and to the American citizenry.
Limits to executive privilege went untested until the Watergate affair in the early 1970s. Five men had broken into the headquarters of the Democratic National Committee and were caught searching for documents that might damage the candidacy of the Democratic nominee, George McGovern. Later investigation showed that the break-in had been planned by members of Richard Nixon's campaign committee and that Nixon and his closest advisers had devised a strategy for impeding the investigation of the crime. After it became known that all of the conversations held in the Oval Office had been recorded on a secret system, Nixon was ordered to turn over the tapes to the special prosecutor in charge of the investigation.
Nixon refused to do so, claiming executive privilege. He argued that "no president could function if the private papers of his office, prepared by his personal staff, were open to public scrutiny." In 1974, in one of the Supreme Court's most famous cases, United States v. Nixon, the justices unanimously ruled that Nixon had to hand over the tapes. The Court held that executive privilege could not be used to prevent evidence from being heard in criminal proceedings.
Signing Statements
Is the president allowed to refuse to enforce certain parts of legislation if he or she believes that they are unconstitutional? This question came to the forefront in recent years because of President George W. Bush's extensive use of signing statements. A signing statement is a written declaration that a president may make when signing a bill into law regarding the law's enforcement.
Presidents have been using such statements for decades, but President Bush used 161 statements to invalidate more than 1,000 provisions of federal law. No president before Bush used signing statements to make such sweeping claims on behalf of presidential power. Earlier presidents often employed statements to serve notice that parts of bills might be unconstitutional, but they were just as likely to issue statements that were purely rhetorical. Statements might praise Congress and the measure it just passed - or denounce the opposition party. During his campaign, Barack Obama criticized Bush's use of signing statements. As president, Obama's statements have been more in line with tradition. About half of the eighteen statements he issued through mid-2012 were entirely rhetorical.
Abuses of Executive Power and Impeachment
Presidents normally leave office either because their first term has expired and they have not sought (or won) reelection or because, having served two full terms, they are not allowed to be elected for a third term (owing to the Twenty-second Amendment, passed in 1951). But there is still another way for a president to leave office - by impeachment and conviction. Articles I and II of the Constitution authorize the House and Senate to remove the president, the vice president, or other civil officers of the United States for committing "Treason, Bribery, or other high Crimes and Misdemeanors." According to the Constitution, the impeachment process begins in the House, which impeaches (accuses) the federal officer involved. If the House votes to impeach the officer, it draws up articles of impeachment and submits them to the Senate, which conducts the actual trial.
Presidents Andrew Johnson and Richard Nixon. In the history of the United States, no president has actually ever been impeached and also convicted - and thus removed from office - by means of this process. President Andrew Johnson (1865-1869), who succeeded to the office after the assassination of Abraham Lincoln, was impeached by the House but acquitted by the Senate. More than a century later, the House Judiciary Committee approved articles of impeachment against Richard Nixon for his involvement in the cover-up of the Watergate break-in of 1972. Informed by members of his own party that he had no hope of surviving the trial in the Senate, Nixon resigned on August 9, 1974, before the full House voted on the articles. Nixon is the only president to have resigned from office.
President Bill Clinton. The second president to be impeached by the House but not convicted by the Senate was President Bill Clinton. In September 1998, the House approved two charges against Clinton: lying to a grand jury about his affair with White House intern Monica Lewinsky and obstruction of justice. The articles of impeachment were then sent to the Senate, which acquitted Clinton. The attempt to remove Clinton was unpopular, although the allegations against him did damage his popularity. Part of the problem for Clinton's Republican opponents was that the charges against the president essentially boiled down to his lying about sex. As one pundit put it, "Everyone lies about sex." Of course, not everyone lies about sex when under oath.
THE EXECUTIVE ORGANIZATION
Gone are the days when presidents answered their own mail, as George Washington did. It was not until 1857 that Congress authorized a private secretary for the president, to be paid by the federal government. Woodrow Wilson typed most of his correspondence, even though he did have several secretaries. At the beginning of Franklin Roosevelt's long tenure in the White House, the entire staff consisted of thirty-seven employees. With the New Deal and World War II, however, the presidential staff became a sizable organization.
The Cabinet
Although the Constitution does not include the word cabinet, it does state that the president "may require the Opinion, in writing, of the principal Officer in each of the executive Departments." Since the time of George Washington, these officers have formed an advisory group, or cabinet, to which the president turns for counsel.
Members of the Cabinet. Originally, the cabinet consisted of only four officials - the secretaries of State, Treasury, and War and the attorney general. Today, the cabinet numbers fourteen department secretaries and the attorney general.
The cabinet may include others as well. The president at his or her discretion can, for example, ascribe cabinet rank to the vice president, the head of the Office of Management and Budget, the national security adviser, and additional officials. Under President Barack Obama, the additional members of the cabinet have been the following;
-The vice president.
-The chair of the Council of Economic Advisers.
-The administrator of the Environmental Protection Agency.
-The director of the Office of Management and Budget.
-The U.S. trade representative.
-The U.S. ambassador to the United States.
-The White House chief of staff.
Often a president will use a kitchen cabinet to replace the formal cabinet as a major source of advice. The term kitchen cabinet originated during the presidency of Andrew Jackson, who relied on the counsel of close friends who allegedly met with him in the kitchen of the White House. A kitchen cabinet is a very informal group of advisers. Usually, they are friends with whom the president worked before being elected.
Presidential Use of Cabinets. Because neither the Constitution nor statutory law requires the president to consult with the cabinet, its use is purely discretionary. Some presidents have relied on the counsel of their cabinets more than others. Dwight Eisenhower was used to the team approach to solving problems from his experience as supreme allied commander during World War II, and therefore he frequently turned to his cabinet for advice on a wide range of issues. More often, presidents have solicited the opinions of their cabinets and then have done what they wanted to do anyway. Lincoln supposedly said - after a cabinet meeting in which a vote was seven nays against his one aye - "Seven nays and one aye, the ayes have it." In general, few presidents have relied heavily on the advice of their cabinet members.
It is not surprising that presidents tend to disregard their cabinet members' advise. Often, the departmental heads are more responsive to the wishes of their own staffs or to their own political ambitions than they are to the president. They may be more concerned with obtaining resources for their departments than with achieving the goals of the president. So there is often a conflict of interest between presidents and their cabinet members.
The Executive Office of the President
When President Franklin Roosevelt appointed a special committee on administrative management, he knew that the committee would conclude that the president needed help. Indeed, the committee proposed a major reorganization of the executive branch. Congress did not approve the entire reorganization, but it did create the Executive Office of the President (EOP) to provide staff assistance for the chief executive and to help coordinate the executive bureaucracy. Since that time, a number of agencies have been created within the EOP to supply the president with advice and staff help. President reorganize the EOP to supply the president with advice and staff help. Presidents reorganize the EOP and the White House constantly, and any table of organization is therefore temporary. As of 2012, however, the EOP agencies under Barack Obama were the following:
-White House Office
-Office of Management and Budget
-National Security Staff
-Council of Economic Advisers
-Council on Environmental Quality
-Office of Administration
-Office of National Drug Control Policy
-Office of Science and Technology Policy
-Office of the Vice President
Several of the agencies within the EOP are especially important, including the White House Office, the Office of Management and Budget, and the National Security Staff. The activities of the Executive Office of the President are featured on the president's own Web site, which you can locate by entering "white house" into your favorite search engine. The site is a helpful source of information and also serves to promote the president and the president's initiatives.
The White House Office. The White House Office includes most of the key personal and political advisers to the president. Among the jobs held by these aides are those of legal counsel to the president, secretary, press secretary, and appointments secretary. Often, the individuals who hold these positions are recruited from the president's campaign staff. Their duties - mainly protecting the president's political interests - are similar to campaign functions. In 2012, the White House Office was made up of the following units:
-Domestic Policy Council
-National Economic Council
-National Security Adviser
-Office of Cabinet Affairs
-Office of the Chief of Staff
-Office of Communications
-Office of Digital Strategy
-Office of the First Lady
-Office of Legislative Affairs
-Office of Management and Administration
-Office of Presidential Personnel
-Office of Public Engagement and Intergovernmental Affairs
-Office of Scheduling and Advance
-Office of the Staff Secretary
-Office of the White House Counsel
-Oval Office Operations
In all recent administrations, one member of the White House Office has been named chief of staff. This person, who is responsible for coordinating the office, is also one of the president's chief advisers.
Many staff members within the EOP are assigned to specific policy areas, and the number of such individuals grew noticeably during Obama's first term. Popularly referred to as "czars," they have included a cyber security czar, an urban affairs czar, and even an Asian carp czar, who coordinates efforts to keep Asian carp out of the Great Lakes. Unlike cabinet officers and many other top executive officials, czars are not subject to confirmation by the U.S. Senate. This exemption has been a source of controversy.
The White House Military Office. In addition to civilian advisers, the president is supported by a large number of military personnel, who are organized under the White House Military Office. These members of the military provide communications, transportation, medical care, and food services to the president and the White House staff.
White House Staff Influence. White House staff members are closest to the president and may have considerable influence over the administration's decisions. Often, when presidents are under fire for their decisions, the staff is accused of keeping the chief executive too isolated from criticism or help. Presidents insist that they will not allow the staff to become too powerful, but, given the difficulty of the office, each president eventually turns to staff members for loyal assistance and protection.
The Office of Management and Budget. The Office of Management and Budget (OMB) was originally the Bureau of the Budget, which was created in 1921 within the Department of the Treasury. Recognizing the importance of this agency, Franklin Roosevelt moved it into the White House Office in 1939. Richard Nixon reorganized the Bureau of the Budget in 1970 and changed its name to reflect its new managerial function. It is headed by a director, who creates the annual federal budget that the president presents to Congress each January for approval. In principle, the director of the OMB has broad fiscal powers in planning and estimating various parts of the federal budget, because all agencies must submit their proposed budget to the OMB for approval. In reality, it is not so clear that the OMB truly can affect the greater scope of the federal budget. The OMB may be more important as a clearinghouse for legislative proposals initiated in the executive agencies.
The National Security Council. The National Security Council (NSC) is a link between the president's key foreign and military advisers and the president. Its members consist of the president, the vice president, and the secretaries of State and Defense, plus other informal members. The NSC is managed by the president's assistant for national security affairs, also known as the national security adviser.
THE VICE PRESIDENCY
The Constitution does not give much power to the vice president. The only formal duty is to preside over the Senate - which is rarely necessary. This obligation is fulfilled when the Senate organizes and adopts its rules and also when the vice president is needed to decide a tie vote. In all other cases, the president pro tem manages parliamentary procedures in the Senate (see Chapter 10). The vice president is expected to participate only informally in senatorial deliberations, if at all.
The Vice President's Job
Vice presidents have traditionally been chosen by presidential nominees to balance the ticket by attracting groups of voters or appeasing party factions. If a presidential nominee is from the North, it is not a bad idea to have a vice-presidential nominee who is from the South. If the presidential nominee is from a rural state, perhaps someone with an urban background would be most suitable as a running mate. Presidential nominees who are strongly conservative or strongly liberal would do well to have vice-presidential nominees whose views lie more in the middle of the political road.
Strengthening the Ticket. In recent presidential elections, however, vice presidents have often been selected for other reasons. Barack Obama picked Joe Biden to be his running mate in 2008 and 2012 to add gravitas (seriousness) and foreign policy experience to the ticket. Republican presidential candidate John McCain's choice of Alaska governor Sarah Palin in 2008 balanced the ticket not only by gender, but also politically. Social conservatives, many of whom were suspicious of McCain, gave enthusiastic support to Palin.
In 2012, Republican presidential candidate Mitt Romney chose Representative Paul Ryan of Wisconsin as his running mate. Ryan, the author of conservative House budget proposals, was greeted with enthusiasm by Republicans who were suspicious of Romney's right-wing credentials.
Supporting the President. Traditionally, the job of the vice president has not been very demanding. In recent years, however, presidents have granted their running mates increased responsibilities and power. President Jimmy Carter was the first modern president to rely on his vice president - Walter Mondale - as a major adviser. Under President George W. Bush, Dick Cheney became the most powerful vice president in history. Cheney was able to place his supporters throughout the bureaucracy and exert influence on a wide range of issues. He could exercise this degree of power, however, only because he had the support of the president. In contrast, Vice President Biden's relationship to President Obama has been more conventional.
Vice presidents sometimes have become elected presidents in their own right. John Adams and Thomas Jefferson were the first to do so. Richard Nixon was elected president in 1968 after he had served as Dwight D. Eisenhower's vice president from 1953 to 1961. In 1988, George H. W. Bush was elected to the presidency after eight years as Ronald Reagan's vice president.
Presidential Succession
Eight vice presidents have become president because of the death of the president. John Tyler, the first to do so, took over William Henry Harrison's position in 1841, after only one month. No one knew whether Tyler should simply be a caretaker until a new president could be elected three and a half years later or whether he actually should be president. Tyler assumed that he was supposed to be the chief executive, and he acted as such - although he was commonly referred to as "His Accidency." Since then, vice presidents taking over the position of presidency because of the incumbent's death have assumed the presidential powers.
But what should a vice president do if a president become incapable of carrying out necessary duties while in office? When James Garfield was shot in 1881, he remained alive for two and a half months. What was Vice President Chester Arthur's role?
This question was not addressed in the original Constitution. Article II, Section 1, says only that "[i]n Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on [the same powers shall be exercised by] the Vice President." There have been many instances or presidential disability. When Dwight Eisenhower became ill a second time in 1958, he entered into a pact with Richard Nixon specifying that the vice president could determine whether the president was incapable of carrying out his duties if the president could not communicate. John F. Kennedy and Lyndon Johnson entered into similar agreements with their vice presidents. Finally, in 1967, the Twenty-fifth Amendment was passed, establishing procedures in the even of presidential incapacity, death, or resignation.
When the President Becomes Incapacitated. According to the Twenty-fifth Amendment, when a president believes that he or she is incapable of performing the duties of office, the president must inform Congress in writing. Then the vice president serves as acting president until the president can resume normal duties. When the president is unable to communicate, a majority of the cabinet, including the vice president, can declare that fact to Congress. Then the vice president serves as acting president until the president resumes normal duties. If a dispute arises over the return of the president's ability, a two-thirds vote of Congress is required to allow the vice president to remain acting president. Otherwise, the president resumes normal duties.
When the Vice Presidency Becomes Vacant. The Twenty-fifth Amendment also addresses the issue of how the president should fill a vacant vice presidency. Section 2 of the amendment simply states, "Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress." This is exactly what occurred when Richard Nixon's first vice president, Spiro Agnew, resigned in 1973 because of his alleged receipt of construction contract kickbacks during his tenure as governor of Maryland. Nixon turned to Gerald Ford as his choice for vice president. After extensive hearings, both chambers of Congress confirmed the appointment.
Then, when Nixon resigned on August 9, 1974, Ford automatically became president and nominated as his vice president Nelson Rockefeller. Congress confirmed Ford's choice. For the first time in the history of the country, neither the president nor the vice president had been elected to their positions.
The Succession Act of 1947. The question of who shall be president if both the president and the vice president die is answered by the Succession Act of 1947. If the president and vice president die, resign, or are disabled, the Speaker of the House will become president, after resigning from Congress. Next in line is the president pro tem of the Senate, followed by the cabinet officers in the order of the creation of their departments.
LIST --> Line of Succession to the Presidency of the United States
1. Vice President
2. Speaker of the House of Representatives
3. Senate President Pro Tempore
4. Secretary of State
5. Secretary of the Treasury
6. Secretary of Defense
7. Attorney General (head of the Justice Department)
8. Secretary of the Interior
9. Secretary of Agriculture
10. Secretary of Commerce
11. Secretary of Labor
12. Secretary of Health and Human Services
13. Secretary of Housing and Urban Development
14. Secretary of Transportation
15. Secretary of Energy
16. Secretary of Education
17. Secretary of Veterans Affairs
18. Secretary of Homeland Security
DID YOU KNOW?
-President William McKinley's salary of $50,000 in 1900 would be worth $1,320,000 in today's dollars.
-The only president in U.S. history to be elected with every possible electoral vote was George Washington.
-Thomas Jefferson was the first president to be inaugurated in Washington, D.C., where he walked to the Capitol from a boardinghouse, took the oath, made a brief speech in the Senate chamber, and then walked back home.
-Twenty-one presidents have served only one term in office.
-President William Henry Harrison gave the longest inaugural address (8,445 words) of any American president, lasting two hours (the weather was chilly and stormy, and Harrison caught a cold, developed pneumonia and pleurisy, and died a month later).
-With a single exception, a Bush was on the ballot in every presidential election from 1980 through 2004.
-The shortest inaugural address was George Washington's second one, at 135 words.
-President Richard Nixon served 56 days without a vice president, and that President Gerald Ford served 132 days without a vice president.