The Boundaries of Presidential The Boundaries of Presidential PowerPower

Formal vs. Informal PowerFormal vs. Informal Power

Formal: granted by the Constitution (AKA Formal: granted by the Constitution (AKA “express(ed)”, “explicit”, “express(ed)”, “explicit”, “constitutional”, ““constitutional”, “de jurede jure”)”)

Informal: not explicitly granted by the Informal: not explicitly granted by the Constitution, but exist anyway (AKA Constitution, but exist anyway (AKA “implied”, ““implied”, “de facto”de facto”))• NOT NECESSARILY UNCOSTITUTIONALNOT NECESSARILY UNCOSTITUTIONAL

*Note that this language applies to the powers *Note that this language applies to the powers of Congress as well.of Congress as well.

I. Ceremonial Head of State I. Ceremonial Head of State (Formal?)(Formal?)

The Roosevelt Taft The Roosevelt Taft DebateDebate

II. President as Chief Executive II. President as Chief Executive (Formal?)(Formal?)

““He shall take Care that the Laws be He shall take Care that the Laws be faithfully executed.”faithfully executed.”

““executive power shall be vested in a executive power shall be vested in a President” President”

Are there limits to the power to “take Are there limits to the power to “take care” (can he exercise judgment or care” (can he exercise judgment or just do what Congress says?) and just do what Congress says?) and does “vested” imply wide discretion? does “vested” imply wide discretion?

Abraham Lincoln and Presidential Abraham Lincoln and Presidential prerogative prerogative

“ “I felt that measures I felt that measures otherwise otherwise unconstitutional unconstitutional might become lawful might become lawful by becoming by becoming indispensable to the indispensable to the preservation of the preservation of the Constitution”Constitution”

Lincoln and TaneyLincoln and TaneyEx Parte Merryman (1861)Ex Parte Merryman (1861)

Ex Parte Milligan (1866)Ex Parte Milligan (1866)

Issue a: Suspension of Issue a: Suspension of habeas corpushabeas corpus

George W. Bush and Jose’ PadillaGeorge W. Bush and Jose’ Padilla

From From “enemy “enemy combatant” combatant” to “civilian” to “civilian”

Supreme Court Cases regarding Supreme Court Cases regarding Iraq War prisonersIraq War prisoners

1. Hamdi v. Rumsfeld (2004)1. Hamdi v. Rumsfeld (2004) Re: US citizens detained as enemy Re: US citizens detained as enemy

combatants on American soilcombatants on American soil Citizens must get a “meaningful Citizens must get a “meaningful

opportunity” to challenge their opportunity” to challenge their detention.detention.

Hamdi convicted or terrorism August Hamdi convicted or terrorism August 2008. Released and deported to Saudi 2008. Released and deported to Saudi Arabia in 2009Arabia in 2009

2. Rasul v. Bush (2004)2. Rasul v. Bush (2004) Court found that Guantànamo Bay was Court found that Guantànamo Bay was

within US jurisdiction and subject to its within US jurisdiction and subject to its laws, meaning detainees there (including laws, meaning detainees there (including non-citizens) were entitled to due process non-citizens) were entitled to due process in US courts (incl. habeas corpus)in US courts (incl. habeas corpus)

Bush admin. objected to Sup. Crt. hearing Bush admin. objected to Sup. Crt. hearing the case (claimed no jurisdiction in the case (claimed no jurisdiction in GTMO)GTMO)

3. Hamdan v. Rumsfeld (2006)3. Hamdan v. Rumsfeld (2006) Concerned the military commissions (courts or Concerned the military commissions (courts or

tribunals) established at Guantánamo Bay to try tribunals) established at Guantánamo Bay to try some detainees in the aftermath of 9/11.some detainees in the aftermath of 9/11.• Civilian court: must be public, requires unanimous jury (of Civilian court: must be public, requires unanimous jury (of

peers) decision to convict, crimes defined by legislature, peers) decision to convict, crimes defined by legislature, can be appealed to higher courtcan be appealed to higher court

• These special military tribunals: could be secret, requires These special military tribunals: could be secret, requires only 2/3 vote of jury (of military officers) to convict, only 2/3 vote of jury (of military officers) to convict, crimes defined by Defense Department (works for crimes defined by Defense Department (works for President), cannot appeal (though a panel of military President), cannot appeal (though a panel of military officers can recommend a re-trial)officers can recommend a re-trial)

Court found that by creating the commissions Court found that by creating the commissions without asking Congress to agree, the president without asking Congress to agree, the president had overstepped his authority under the had overstepped his authority under the Constitution’s separation of powers. (Congress has Constitution’s separation of powers. (Congress has Const. power to establish “inferior” courts.)Const. power to establish “inferior” courts.)

Boumediene v. Bush (2008)Boumediene v. Bush (2008) Ruled part of “Military Commissions Act of 2002” unconst.Ruled part of “Military Commissions Act of 2002” unconst. Purpose of Act: “To authorize trial by military commission Purpose of Act: “To authorize trial by military commission

for violations of the law of war, and for other purposes”for violations of the law of war, and for other purposes” Potential to be used to declare US citizens as unlawful Potential to be used to declare US citizens as unlawful

enemy combatants and therefore no habeas corpusenemy combatants and therefore no habeas corpus

Issue b: Truman and Steel SeizureIssue b: Truman and Steel SeizureYoungstown Sheet and Tube v. SawyerYoungstown Sheet and Tube v. Sawyer

•Truman tried to seize Truman tried to seize steel manuf. to prevent steel manuf. to prevent a strike during the a strike during the Korean War.Korean War.•Court ruled seizure Court ruled seizure (“eminent domain”) is (“eminent domain”) is the power of Congress.the power of Congress.

Issue c: Lawmaking through Issue c: Lawmaking through Executive OrdersExecutive Orders

Truman and the desegregation of the Truman and the desegregation of the military (E.O. 9981)military (E.O. 9981)

It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible . . .

Lyndon Johnson and E.O. 11246Lyndon Johnson and E.O. 11246

““all Government contracting all Government contracting agencies shall include in every agencies shall include in every Government contract hereafter Government contract hereafter entered into the following entered into the following provisions:” “The contractor will provisions:” “The contractor will take affirmative action to ensure take affirmative action to ensure that applicants are employed, and that applicants are employed, and that employees are treated during that employees are treated during employment, without regard to employment, without regard to their race, color, religion, sex or their race, color, religion, sex or national origin” national origin”

Issue d: Executive Privilege Issue d: Executive Privilege (Formal?)(Formal?)

President’s right to resist President’s right to resist subpoenas in order to subpoenas in order to effectively carry out effectively carry out executive dutiesexecutive dutiesClaimed by both Claimed by both Washington and JeffersonWashington and JeffersonConst. mentions right to Const. mentions right to have counselorshave counselorsHas been upheld by Sup Has been upheld by Sup Crt.Crt.

US v. Nixon (1974)US v. Nixon (1974)

Prosecutor wanted tapes of conversations involving WatergateNixon edited them and claimed “absolute, unequalified executive privilege from the judicial process under all circumstances” (citing sep. of powers and need for candor from advisors)Unanimous Crt decision that judicial review allows Crt to decide how the Const. limits powers of President.

Clinton and the Lewinsky caseClinton and the Lewinsky case

Bush Administration and Executive Bush Administration and Executive PrivilegePrivilege

Argued that Argued that Executive Privilege Executive Privilege precluded precluded Congressional Congressional testimony of testimony of Harriet Miers and Harriet Miers and others regarding others regarding U.S. Attorney U.S. Attorney firings.firings.

Vice President Cheney:Vice President Cheney:Executive or Not?Executive or Not?

2001: Congressional probe 2001: Congressional probe into energy policy into energy policy “would “would unconstitutionally unconstitutionally interfere with the interfere with the functioning of the functioning of the executive branch.”executive branch.”

In Court case, avoided In Court case, avoided claim of “executive claim of “executive privilege.”privilege.”

Cheney in 2007Cheney in 2007

Nat’l Archives sought to inspect the Nat’l Archives sought to inspect the office of the VP in accordance w/ an office of the VP in accordance w/ an EO endorsed by GWB (to check if EO endorsed by GWB (to check if classified materials handled properly)classified materials handled properly)

To avoid the inspection, Cheney To avoid the inspection, Cheney claimed the Vice Presidency is not claimed the Vice Presidency is not “an entity within the executive “an entity within the executive branch.” branch.”

Claim later withdrawnClaim later withdrawn

III. President as Chief Legislator: III. President as Chief Legislator: Innovative uses of “the veto” Innovative uses of “the veto”

(Formal?)(Formal?) ““Every Bill which shall have passed the House of Every Bill which shall have passed the House of

Representatives and the Senate, shall, before it Representatives and the Senate, shall, before it become a Law, be presented to the President of become a Law, be presented to the President of the United States; If he approve he shall sign it, the United States; If he approve he shall sign it, but if not he shall return it” but if not he shall return it”

http://en.wikipedia.org/wiki/List_of_United_States_presidential_vetoes

FDR sometimes asked his aides for “something I FDR sometimes asked his aides for “something I can veto” so he could send a message to can veto” so he could send a message to Congress.Congress.

Presidential Vetoes, 1933–2007 Presidential Vetoes, 1933–2007

PresidentPresidentCoincident Coincident CongressesCongresses

Regular Regular vetoesvetoes

Pocket Pocket vetoesvetoes

Total Total vetoesvetoes

Vetoes Vetoes overriddenoverridden

F. D. RooseveltF. D. Roosevelt 73rd–79th73rd–79th 372372 263263 635635 99

TrumanTruman 79th–82nd79th–82nd 180180 7070 250250 1212

EisenhowerEisenhower 83rd–86th83rd–86th 7373 108108 181181 22

KennedyKennedy 87th–88th87th–88th 1212 99 2121 ——

L. B. JohnsonL. B. Johnson 88th–90th88th–90th 1616 1414 3030 ——

NixonNixon 91st–93rd91st–93rd 2626 1717 4343 77

FordFord 93rd–94th93rd–94th 4848 1818 6666 1212

CarterCarter 95th–96th95th–96th 1313 1818 3131 22

ReaganReagan 97th–100th97th–100th 3939 3939 7878 99

G.H.W. BushG.H.W. Bush11 101st–102nd101st–102nd 2929 1515 4444 11

ClintonClinton 103rd–106th103rd–106th 3636 11 3737 22

G. W. BushG. W. Bush 107th–108th107th–108th 1111 11 1212 44

Total in historyTotal in history    1,4921,492 1,0661,066 2,5582,558 108 (4%)108 (4%)

Pocket Veto (Formal?)Pocket Veto (Formal?)

Normally only available in last 10 days of session Normally only available in last 10 days of session of Congressof Congress

Nixon tried to use the pocket veto during Nixon tried to use the pocket veto during Christmas Christmas recessrecess

Court declared unconstitutional because not Court declared unconstitutional because not prevented from returning bill to Congressprevented from returning bill to Congress

Now only allowed when Congress Now only allowed when Congress adjournsadjourns (“sine (“sine die” without setting a day for return)die” without setting a day for return)

Item veto (Formal?)Item veto (Formal?)Line Item Veto Act of Line Item Veto Act of 19961996Only for appropriations Only for appropriations leg. (primarily to prevent leg. (primarily to prevent excessive pork defense excessive pork defense spending)spending)Supported by Rep Supported by Rep because would reduce because would reduce deficitdeficitOne year wonderOne year wonderClinton v. New York Clinton v. New York declared unconst.declared unconst.Request for Request for reinstatement by Bushreinstatement by Bush

The Signing Statement The Signing Statement (Formal?)(Formal?)

Statement of how President intends to implement lawStatement of how President intends to implement law Bush—12 vetoes, 4 overriddenBush—12 vetoes, 4 overridden Bush added signing statements challenging the Bush added signing statements challenging the

constitutionality (usually as interfering w/ power of constitutionality (usually as interfering w/ power of President) of more than 1,100 separate sections in President) of more than 1,100 separate sections in 150 laws. All the presidents who came before have 150 laws. All the presidents who came before have added signing statements totaling 600 sections of added signing statements totaling 600 sections of law. law.

• Domestic spyingDomestic spying• ““secret operations”secret operations”• Torture banTorture ban

Chadha Family and Legislative Chadha Family and Legislative VetoVeto

AKA Congressional VetoAKA Congressional Veto

Part of a law that requires Part of a law that requires the Exec. Branch to check the Exec. Branch to check with Congress before with Congress before actingacting

Ruled unconstitutional Ruled unconstitutional (separation of powers), (separation of powers), but used anywaybut used anyway

IV. President as Commander-in- IV. President as Commander-in- Chief (Formal?)Chief (Formal?)

““The President shall The President shall

be Commander in be Commander in

Chief of the Army Chief of the Army

and Navy of and Navy of

the United States.”the United States.”

What about the AirWhat about the Air

Force? Force?

Strategic Placement of Troops: Strategic Placement of Troops: Theodore Roosevelt and the “White Theodore Roosevelt and the “White

Fleet”Fleet”Roosevelt sent 16 battleships to Asia as show of US power and presidential authorityHe had authority to dispatch (as Comm-in-Chief), but only Congress could fund (and they refused)TR sent ships anyway and challenged Congress to either fund or strand at sea.

Korea and Vietnam: Korea and Vietnam: Undeclared WarsUndeclared Wars

War Powers Resolution (or Act), War Powers Resolution (or Act), 19731973

Passed over Nixon’s veto.President can commit forces for 60-90 days, then forces must withdraw unless Congress declares warCongress can pass concurrent resolution (w/ no veto) at any time to end American participation in hostilitiesAll Presidents since 1973 have considered unconstitutional (Why?)Generally ignored and Congress reluctant to use (Why?)

George H.W. Bush & George H.W. Bush & IraqIraq

Debate in Congress when Bush threatened Hussein if he failed to pull out of Kuwait, but ended when divided Congress authorized force.

V. President as Chief Diplomat V. President as Chief Diplomat (Formal?)(Formal?)

““He shall have power, by and with He shall have power, by and with the advice and consent of the the advice and consent of the Senate, to make treaties, provided Senate, to make treaties, provided two thirds of the Senators present two thirds of the Senators present concur” concur”

START Nuclear Arms Reduction Treaty

Woodrow Wilson and The Treaty of Woodrow Wilson and The Treaty of VersaillesVersailles

Checks and balancesChecks and balances

Executive Agreements Executive Agreements (Formal?)(Formal?)

Not formal treaty Not formal treaty (gentlemen’s agreement (gentlemen’s agreement between heads of state)between heads of state)

Increased use (Why?)Increased use (Why?)

Bricker Amendment Bricker Amendment proposed to limit this proposed to limit this practicepractice

Prior to 1940 the U.S. Senate had ratified 800 treaties and presidents had made 1,200 executive agreements; from 1940 to 1989, presidents signed nearly 800 treaties but more than 13,000 executive agreements.

Other Powers (Formal?)Other Powers (Formal?)

Appoint ALL national judgesAppoint ALL national judges Appoint Cabinet and heads of agenciesAppoint Cabinet and heads of agencies Pardon criminals (also grants clemency AKA Pardon criminals (also grants clemency AKA

“commutes” sentences)“commutes” sentences) Impounding funds? (obstructing laws by instructing Impounding funds? (obstructing laws by instructing

bureaucracy not to spend money allocated by bureaucracy not to spend money allocated by Congress for a project; started w/ Jefferson)Congress for a project; started w/ Jefferson)• Congress has passed the Congressional Budget Congress has passed the Congressional Budget

and Impoundment Control Act of 1974 to end this and Impoundment Control Act of 1974 to end this practicepractice

• All Presidents since Reagan have called for All Presidents since Reagan have called for restoration of this power.restoration of this power.