CHAPTER 14EXECUTIVE BRANCH

THE GROWTH OF PRESIDENTIAL POWER

ARTICLE II

• ARTICLE II:• The President is vested with the executive power.• At the Constitutional Convention in 1787 there was an on-

going argument about the extent of power that should be given to the President

• --Should the President be subordinate to Congress??• --Should the President a strong, independent, co-equal to

Congress?? • The latter won out. Even though the wording of Article II has

not changed, the President’s powers have. These powers have come at the expense of Congress.

• Why??• 1. Presidency is unified, the office and its powers are controlled

by one person.• 2. Congress is bicameral, and have to agree to get anything

accomplished.• 3. Some Presidents have had strong personalities.

ARTICLE II continued• 4. The complexity of life has increased the President’s power.

• --Transportation, welfare, health, unemployment, taxes, education, civil rights.

• 5. The need for decisive, immediate action is required with many crises, terrorist attacks, war, etc. Congress cannot do that.

• 6. The President has to interpret and carry out the 1000s of laws passed by Congress.

• 7. President has more access to mass media for support for his policies.

• **The President has had his power restricted by two important court decisions: Youngstown Sheet & Tube Co. v. Sawyer, 1952. and Rasul v. Bush, 2004.

• THE PRESIDENTIAL VIEWTHE PRESIDENTIAL VIEW• 3 VIEWS:

• 1. STEWARDSHIP THEORY—T. Roosevelt

• 2. CARETAKER THEORY—William H. Taft

• **IMPERIAL PRESIDENCY**--Richard Nixon

OTHER POWERS OF THE OTHER POWERS OF THE PRESIDENCY C. 15PRESIDENCY C. 15

DIPLOMATIC AND MILITARY POWERSDIPLOMATIC AND MILITARY POWERS

• I. DIPLOMATIC POWERS• 1. Power to Make Treaties-

– Treaty is a formal agreement between two sovereign states– All treaties need Senate approval. (2/3s majority needed)– Treaties are part of the “Supreme Law of the Land”

• Treaties can be abrogated (repealed) by Congressional law and acts of Congress can be abrogated by treaties. Head Money Cases, 1884

• Treaties can also be unconstitutional. Missouri v. Holland, 1920.• Notable treaties rejected by the Senate:

– Treaty of Versailles, Annexation of Texas, Annexation of Hawaii

• 2. Executive Agreement– International agreement between the President and the

leader of another country.– They do not need Senate approval.

• Notable executive agreements:– Lend Lease 1940, SALT I

DIPLOMATIC POWERS CONTINUED• 3. The Power of Recognition

– Act of officially recognizing the legal existence of another country.• Accomplished by receiving diplomats.• Recognition does NOT mean the US approves of the other

country’s conduct—China or Pakistan. It means we have diplomatic links.– Recognition can be a tool of diplomacy—Panama in

1903, Israel in 1948• Withdrawal of recognition s the normally the last step

before war.– 1. Declare ambassador—Persona non grata– 2. Withdrawal of recognition

• II. MILITARY POWERS• 1. Commander-in-Chief—

– Congress declares war and appropriates funds for the military but the President’s powers over the military are almost unlimited.—Congress has declared war 5 times in American history. (9 unofficial)

– President normally delegates the military authority to generals; exceptions: Washington 1794, Lincoln 1860s

MILITARY POWERS CONTINUED

• 2. Making Undeclared War– Not mentioned in Constitution. (Barbary Coast War 1804)– Precedent gives the President the power.

• 3. Congressional Resolutions– 8 times Congress has given the power to use the military in

international crises.– 1955—Taiwan– 1957– Marines to Lebanon– 1962– Cuban Missile Crisis– 1964– Gulf of Tonkin Resolution– 2002– Operation Iraqi Freedom

• 4. Other Uses of Military Power– Use of the military without Congressional approval– Caribbean protectorates, Korea, Grenada, Panama, Kosovo(most under the power of the Monroe Doctrine and Roosevelt

Corollary)

• 5. The War Powers Resolution of 1973 (Over a presidential veto)– After committing troops, Pres. has 48 hrs. to inform Congress why.– Combat lasts for 60 days, which Congress can extend.– Combat can end by a concurrent resolution

THE PRESIDENT’S EXECUTIVE POWERS• EXECUTING THE LAW:• This allows the President to enforce, administer and carry out

the laws.—Oath of Office, and the faithfully executed clause.• Execute all federal laws.

– In carrying out these laws the President also interprets the laws. Congress purposely passes vague laws giving the President the authority to give the law meaning.

1. THE ORDINANCE POWER– President has the power to issue executive orders.

• —rules or regulations that have the effect of law but have to be pursuant to laws passed by Congress or Supreme Court decisions

• The power to issue necessary orders and the power to implement them.

• Examples: – Speed limits on Interstate Highways, – Emission standards for cars and factories, – Desegregation of public schools, – Use of War Powers, – Removal of Japanese WW2.

• 2. APPOINTMENT POWER:– A. Article II, sec. 2, cl. 2 gives the president to appoint

Ambassadors, Judges, Cabinet positions, Agency leaders, top ranking military leaders and other federal government employees.—PATRONAGE SYSTEM [Spoils System]

• ****President must have this power to guarantee loyalty to his policies.

• Same party• Personal friend of President.• Supporter of Presidential policies

– B. President has to follow senatorial courtesy.• [If there is an opening on the Federal Court in SC, ask advice

from SC’s senators before making the appointment]– C. Most government positions are out of the control of the

President or Congress. (Pendleton Civil Service Act 1881)• Rank and file government positions are filled by the

Merit System.• Jobs are filled based on test scores, not party loyalty.• PRESIDENT HAS REMOVAL POWER EXCEPT OVER

CERTAIN REGULATORY COMMISSIONS.

SECTION 4: LEGISLATIVE AND JUDICIAL POWERS

• LEGISLATIVE POWERSLEGISLATIVE POWERS• 1. Recommending Legislation

– The Message Power• State of the Union Address• The Budget Message• Annual Economic Report

– Proposes a wide range bills for Congress to enact over issues he thinks are necessary for the welfare of the country.

• 2. The Veto Power– Sign bill– Let become law without signature.– Pocket veto– Veto—threat of which can kill a bill or get it amended to

satisfy the President.• Congress can override a bill with a 2/3s majority of both houses.

• 3. Line-Item Veto– The power to veto only a part of a bill not the whole thing.– 1996 Congress passed the Line Item Veto Act.

LEGISLATIVE POWERS CONTINUED• Line Item Veto was granted for provisions of spending

bills that benefited fewer than 100 people. (PRIVATE BILLS)

• Opponents challenged the law: Clinton v. New York City, 1998.

Supreme Court struck down the law as unconstitutional. Line Item Veto must be a constitutional amendment.

4. Other Legislative Powers: --Call a special session of Congress. --Power of prorogue

JUDICIAL POWERS1. Reprieve2. Pardon (clemency)

A. Usually granted after a trialB. Can be granted in advance (admission of guilt) Ford and

NixonC. Pardon has to be accepted. Burdick v. US, 1915

3. Commutation4. Amnesty (B. Harrison to Mormons, Ford and Carter to

“draft dodgers”)