Open main menu

Powers of the President of the United States

The powers of the President of the United States include those powers explicitly granted by Article II of the United States Constitution to the President of the United States, implied powers, powers granted by Acts of Congress, implied powers, and also a great deal of soft power that is attached to the presidency.

The Constitution explicitly assigns the president the power to sign or veto legislation, command the armed forces, ask for the written opinion of their Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. The President oversees federal law execution by directing and removing executive officers. The president may make treaties, which need to be ratified by two-thirds of the Senate, and is accorded those foreign-affairs functions not otherwise granted to Congress or shared with the Senate. Thus, the President can control the formation and communication of foreign policy and can direct the nation's diplomatic corps. The president may also appoint Article III judges and some officers with the advice and consent of the U.S. Senate. In the condition of a Senate recess, the president may make a temporary appointment.

Contents

Commander-in-Chief powers

Article II of the Constitution expressly designates the president as "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."[1] Since the National Security Act of 1947, this has been understood to mean all United States Armed Forces. U.S. ranks have their roots in British military traditions, with the President possessing ultimate authority, but no rank, maintaining a civilian status, other than the title of Commander in Chief.[2] Before 1947, the President was the only common superior of the Army (under the Secretary of War) and the Navy and Marine Corps (under the Secretary of the Navy).[3] The National Security Act of 1947, and the 1949 amendments to the same act, created the Department of Defense and the services (Army, Navy, Marine Corps and Air Force) became subject to the "authority, direction and control" of the Secretary of Defense; the civilian cabinet-level official serving as the head of the Department of Defense and who is appointed by the President with the advice and consent of the Senate.[4][5]

The power to declare war is constitutionally vested in Congress,[6] but the president has ultimate responsibility for the direction and disposition of the military. The present-day operational command of the Armed Forces is delegated to the Department of Defense and is normally exercised through the Secretary of Defense. The Chairman of the Joint Chiefs of Staff and the Combatant Commands assist with the operation as outlined in the presidentially approved Unified Command Plan (UCP).[7][8][9]

 
A painting depicting President George Washington and his troops before their march to suppress the Whiskey Rebellion in 1794.

The exact degree of authority that the Constitution grants to the President as Commander in Chief has been the subject of much debate throughout American history, with Congress at various times granting the president wide authority and at others attempting to restrict that authority.[10] Pursuant to the War Powers Resolution of 1973, Congress must authorize any troop deployments longer than 60 days, although that process relies on triggering mechanisms that have never been employed, rendering it ineffectual.[11] Additionally, Congress provides a check to presidential military power through its control over military spending and regulation. Presidents have historically initiated the process for going to war,[12][13] but critics have charged that there have been several conflicts in which presidents did not get official declarations, including Theodore Roosevelt's military move into Panama in 1903,[12] the Korean War,[12] the Vietnam War,[12] and the invasions of Grenada in 1983[14] and Panama in 1989.[15]

The amount of military detail handled personally by the President in wartime has varied dramatically.[16] George Washington, the first U.S. president, firmly established military subordination under civilian authority. In 1794, Washington used his constitutional powers to assemble 12,000 militia to quell the Whiskey Rebellion—a conflict in western Pennsylvania involving armed farmers and distillers who refused to pay excise tax on spirits. According to historian Joseph Ellis, this was the "first and only time a sitting American president led troops in the field", though James Madison briefly took control of artillery units in defense of Washington D.C. during the War of 1812.[17]

Abraham Lincoln was deeply involved in overall strategy and in day-to-day operations during the American Civil War, 1861–1865; historians have given Lincoln high praise for his strategic sense and his ability to select and encourage commanders such as Ulysses S. Grant.[18] On the other extreme, Woodrow Wilson paid very little attention to operational military details of World War I and had very little contact with the War Department or with General John J. Pershing, who had a high degree of autonomy as commander of the armies in France.[19] As President in World War II, Franklin D. Roosevelt worked closely with his generals, and admirals, and assigned Admiral William D. Leahy as Chief of Staff to the Commander in Chief.[20] Harry S. Truman believed in a high amount of civilian leadership of the military, making many tactical and policy decisions based on the recommendations of his advisors—including the decision to use atomic weapons on Japan, to commit American forces in the Korean War, and to terminate Douglas MacArthur from his command.[21] Lyndon B. Johnson kept a very tight personal control of operations during the Vietnam War, which some historians have sharply criticized.[22]

In 1990, the Iraqi invasion of Kuwait and the ensuing Gulf War in 1991, saw George H. W. Bush assemble and lead one of the largest military coalitions of nations in modern times. Confronting a major constitutional issue of murky legislation that left the wars in Korea and Vietnam without official declarations of war, Congress quickly authorized sweeping war-making powers for Bush.[23] The leadership of George W. Bush during the War in Afghanistan and Iraq War achieved mixed results. In the aftermath of the September 11 attacks by al-Qaeda, the subsequent War on Terror that followed, and the 2003 invasion of Iraq due to Iraq's sponsorship of terrorism and alleged possession of weapons of mass destruction, the speed at which the Taliban and Ba'ath Party governments in both Kabul and Baghdad were toppled by an overwhelming superiority of American and allied forces defied the predictions of many military experts. However, insufficient post-war planning and strategy by Bush and his advisors to rebuild those nations were costly.[24][25]

The president, as Commander in Chief, may also call into federal service individual state units of the National Guard. In times of war or national emergency, the Congress may grant the president broader powers to manage the national economy and protect the security of the United States, but these powers were not expressly granted by the Constitution.[26]

Executive powers

Within the executive branch itself, the president has broad powers to manage national affairs and the priorities of the government. The president can issue rules, regulations, and instructions called executive orders, which have the binding force of law upon federal agencies but do not require approval of the United States Congress. Executive orders are subject to judicial review and interpretation.

The Budget and Accounting Act of 1921 put additional responsibilities on the presidency for the preparation of the United States federal budget, although Congress was required to approve it.[27] The act required the Office of Management and Budget to assist the president with the preparation of the budget. Previous presidents had the privilege of impounding funds as they saw fit, however the United States Supreme Court revoked the privilege in 1998 as a violation of the Presentment Clause. The power was available to all presidents and was regarded as a power inherent to the office. The Congressional Budget and Impoundment Control Act of 1974 was passed in response to large-scale power exercises by President Nixon. The act also created the Congressional Budget Office as a legislative counterpoint to the Office of Management and Budget.

Powers related to legislation

The president has several options when presented with a bill from Congress. If the president agrees with the bill, he can sign it into law within ten days of receipt. If the president opposes the bill, he can veto it and return the bill to Congress with a veto message suggesting changes unless the Congress is out of session then the president may rely on a pocket veto.

Presidents are required to approve all of a bill or none of it; selective vetoes have been prohibited. In 1996, Congress gave President Bill Clinton a line-item veto over parts of a bill that required spending federal funds. The Supreme Court, in Clinton v. New York City, found Clinton's veto of pork-barrel appropriations for New York City to be unconstitutional because only a constitutional amendment could give the president line-item veto power.[28]

When a bill is presented for signature, the president may also issue a signing statement with expressions of their opinion on the constitutionality of a bill's provisions. The president may even declare them unenforceable but the Supreme Court has yet to address this issue.[29]

Congress may override vetoes with a two-thirds vote in both the House and the Senate. The process has traditionally been difficult and relatively rare. The threat of a presidential veto has usually provided sufficient pressure for Congress to modify a bill so the President would be willing to sign it.

Much of the legislation dealt with by Congress is drafted at the initiative of the executive branch.[30] The president may personally propose legislation in annual and special messages to Congress including the annual State of the Union address and joint sessions of Congress. If Congress has adjourned without acting on proposals, the president may call a special session of the Congress.

Beyond these official powers, the U.S. president, as a leader of his political party and the United States government, holds great sway over public opinion whereby they may influence legislation.

To improve the working relationship with Congress, presidents in recent years have set up an Office of Legislative Affairs. Presidential aides have kept abreast of all important legislative activities.

Powers of appointment

Before taking office, the president-elect and his transition team must appoint people to more than 6,000 federal positions.[31] The appointments range from top officials at U.S. government agencies, to the White House Staff, and members of the United States diplomatic corps. Many, but not all, of these positions at the highest levels are appointed by the president with the advice and consent of the United States Senate.[32]

The president also nominates persons to fill federal judicial vacancies, including federal judges, such as members of the United States Courts of Appeals and the U.S. Supreme Court. These nominations require Senate confirmation, and this can provide a major stumbling block for presidents who wish to shape the federal judiciary in a particular ideological stance.

As head of the executive branch, the president appoints the top officials for all federal agencies. These positions are listed in the Plum Book which outlines more than seven thousand appointive positions in the government. Many of these appointments are made by the president. In the case of ten agencies, the president is free to appoint a new agency head. For example, it is not unusual for the CIA's Director or NASA's Administrator to be changed by the president. Other agencies that deal with federal regulation such as the Federal Reserve Board or the Securities and Exchange Commission have set terms that will often outlast presidential terms. For example, governors of the Federal Reserve serve for fourteen years to ensure agency independence. The president also appoints members to the boards of directors for government-owned corporations such as Amtrak. The president can also make a recess appointment if a position needs to be filled while Congress is not in session.[33]

In the past, presidents could appoint members of the United States civil service. This use of the spoils system allowed presidents to reward political supporters with jobs. Following the assassination of President James Garfield by Charles J. Guiteau, a disgruntled office seeker, Congress instituted a merit-based civil service in which positions are filled on a nonpartisan basis.[34] The Office of Personnel Management now oversees the staffing of 2.8 million federal jobs in the federal bureaucracy.

The president must also appoint his staff of aides, advisers, and assistants. These individuals are political appointments and are not subject to review by the Senate. All members of the staff serve "at the pleasure of the President".[35][36] Since 1995, the president has been required to submit an annual report to Congress listing the name and salary of every employee of the White House Office. The 2011 report listed 454 employees.[37]

Executive clemency

Article II of the United States Constitution gives the president the power of clemency. The two most commonly used clemency powers are those of pardon and commutation. A pardon is an official forgiveness for an acknowledged crime. Once a pardon is issued, all punishment for the crime is waived. The person accepting the pardon must, however, acknowledge that the crime did take place.[38] The president can only grant pardons for federal offences.[39] The president maintains the Office of the Pardon Attorney in the U.S. Department of Justice to review all requests for pardons. The president can also commute a sentence which, in effect, changes the punishment to time served. While the guilty party may be released from custody or not have to serve out a prison term, all other punishments still apply.

Most pardons are issued as oversight of the judicial branch, especially in cases where the Federal Sentencing Guidelines are considered too severe. This power can check the legislative and judicial branches by altering punishment for crimes. Presidents can issue blanket amnesty to forgive entire groups of people. For example, President Jimmy Carter granted amnesty to Vietnam draft dodgers who had fled to Canada. Presidents can also issue temporary suspensions of prosecution or punishment in the form of respites. This power is most commonly used to delay federal sentences of execution.

Pardons can be controversial when they appear to be politically motivated. President George W. Bush commuted the sentence of White House staffer Lewis "Scooter" Libby.

Foreign affairs

Under the Constitution, the president is the federal official that is primarily responsible for the relations of the United States with foreign nations. The president appoints ambassadors, ministers, and consuls (subject to confirmation by the Senate) and receives foreign ambassadors and other public officials.[26] With the Secretary of State, the president manages all official contacts with foreign governments.

On occasion, the president may personally participate in summit conferences where heads of state meet for direct consultation.[40] For example, President Wilson led the American delegation to the Paris Peace Conference in 1919 after World War I; President Franklin D. Roosevelt met with Allied leaders during World War II; and every president sits down with world leaders to discuss economic and political issues and to reach agreements.

Through the Department of State and the Department of Defense, the president is responsible for the protection of Americans abroad and of foreign nationals in the United States. The president decides whether to recognize new nations and new governments,[41] and negotiate treaties with other nations, which become binding on the United States when approved by two-thirds of the Senate. The president may also negotiate executive agreements with foreign powers that are not subject to Senate confirmation.[42]

Emergency powers

The Constitution does not expressly grant the president additional powers in times of national emergency. However, many scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Because the Constitution remains silent on the issue, the courts cannot grant the Executive Branch these powers when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the president.[43]

A claim of emergency powers was at the center of President Abraham Lincoln's suspension of habeas corpus without Congressional approval in 1861. Lincoln claimed that the rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the writ. With Chief Justice Roger Taney sitting as judge, the Federal District Court of Maryland struck down the suspension in Ex Parte Merryman, although Lincoln ignored the order.[44]

President Franklin Delano Roosevelt similarly invoked emergency powers when he issued an order directing that all Japanese Americans residing on the West Coast be placed into internment camps during World War II. The U.S. Supreme Court upheld this order in Korematsu v. United States.[45]

Harry Truman declared the use of emergency powers when he nationalized private steel mills that failed to produce steel because of a labor strike in 1952.[46] With the Korean War ongoing, Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped.[47] The U.S. Supreme Court, however, refused to accept that argument in Youngstown Sheet & Tube Co. v. Sawyer, voting 6-3 that neither Commander in Chief powers nor any claimed emergency powers gave the president the authority to unilaterally seize private property without Congressional legislation.[48]

Executive privilege

Executive privilege gives the president the ability to withhold information from the public, Congress, and the courts in national security and diplomatic affairs.[49] George Washington first claimed privilege when Congress requested to see Chief Justice John Jay's notes from an unpopular treaty negotiation with Great Britain. While not enshrined in the Constitution, Washington's action created the precedent for privilege. When Richard Nixon tried to use executive privilege as a reason for not turning over subpoenaed audio tapes to a special prosecutor in the Watergate scandal, the Supreme Court ruled in United States v. Nixon that privilege was not absolute. The Court reasoned that the judiciary’s interest in the “fair administration of criminal justice” outweighed President Nixon’s interest in keeping the evidence secret.[50] Later President Bill Clinton lost in federal court when he tried to assert privilege in the Lewinsky affair. The Supreme Court affirmed this in Clinton v. Jones, which denied the use of privilege in cases of civil suits.[51]

Constraints on presidential power

Because of the vast array of presidential roles and responsibilities, coupled with a conspicuous presence on the national and international scene, political analysts have tended to place great emphasis on the president's powers. Some have even spoken of "the imperial presidency", referring to the expanded role of the office that Franklin D. Roosevelt maintained during his term.

President Theodore Roosevelt famously called the presidency a "bully pulpit" from which to raise issues nationally, for when a president raises an issue, it inevitably becomes subject to public debate. A president's power and influence may be limited, but politically the president is certainly the most important power in Washington and, furthermore, is one of the most famous and influential of all Americans.

Though constrained by various other laws passed by Congress, the president's executive branch conducts most foreign policy, and their power to order and direct troops as commander-in-chief is quite significant (the exact limits of what a president's military powers without Congressional authorization are open to debate).

The Separation of Powers devised by the founding fathers was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as "checks and balances". For example, the President appoints judges and departmental secretaries, but these appointments must be approved by the Senate. The president can veto bills, or deny them. If he does that, the bill is sent back to Congress.

See also

References

  1. ^ Joseph G. Dawson, ed. Commanders in Chief: Presidential Leadership in Modern Wars (1993)
  2. ^ Matthew Moten, Presidents and Their Generals: An American History of Command in War (2014)
  3. ^ King, Archibald (1960) [1949]. Command of the Army (PDF) (reprint). Military Affairs. Charlottesville, Virginia: The Judge Advocate General's School, U.S. Army. 
  4. ^ 50 U.S.C. § 401
  5. ^ 10 U.S.C. § 113
  6. ^ "United States Constitution". United States Senate. September 17, 1787. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water 
  7. ^ "DOD Releases Unified Command Plan 2011". United States Department of Defense. April 8, 2011. Archived from the original on May 13, 2011. Retrieved February 25, 2013. 
  8. ^ 10 U.S.C. § 164
  9. ^ Joint Chiefs of Staff. About the Joint Chiefs of Staff. Retrieved February 25, 2013.
  10. ^ Ramsey, Michael; Vladeck, Stephen. ""Common Interpretation: Commander in Chief Clause"". National Constitution Center Educational Resources (some internal navigation required). National Constitution Center. Retrieved May 23, 2017. 
  11. ^ Christopher, James A.; Baker, III (July 8, 2008). "The National War Powers Commission Report". The Miller Center of Public Affairs at the University of Virginia. Archived from the original (PDF) on November 26, 2010. Retrieved December 15, 2010. No clear mechanism or requirement exists today for the president and Congress to consult. The War Powers Resolution of 1973 contains only vague consultation requirements. Instead, it relies on reporting requirements that, if triggered, begin the clock running for Congress to approve the particular armed conflict. By the terms of the Resolution, however, Congress need not act to disapprove the conflict; the cessation of all hostilities is required in 60 to 90 days merely if Congress fails to act. Many have criticized this aspect of the Resolution as unwise and unconstitutional, and no president in the past 35 years has filed a report "pursuant" to these triggering provisions. 
  12. ^ a b c d "The Law: The President's War Powers". Time. June 1, 1970. Retrieved September 28, 2009. 
  13. ^ Mitchell, Alison (May 2, 1999). "The World; Only Congress Can Declare War. Really. It's True". The New York Times. Retrieved November 8, 2009. Presidents have sent forces abroad more than 100 times; Congress has declared war only five times: the War of 1812, the Mexican War, the Spanish–American War, World War I and World War II. 
  14. ^ Mitchell, Alison (May 2, 1999). "The World; Only Congress Can Declare War. Really. It's True". The New York Times. Retrieved November 8, 2009. President Reagan told Congress of the invasion of Grenada two hours after he had ordered the landing. He told Congressional leaders of the bombing of Libya while the aircraft were on their way. 
  15. ^ Gordon, Michael R. (December 20, 1990). "U.S. troops move in panama in effort to seize noriega; gunfire is heard in capital". The New York Times. Retrieved November 8, 2009. It was not clear whether the White House consulted with Congressional leaders about the military action, or notified them in advance. Thomas S. Foley, the Speaker of the House, said on Tuesday night that he had not been alerted by the Administration. 
  16. ^ Andrew J. Polsky, Elusive Victories: The American Presidency at War (Oxford University Press, 2012) online review
  17. ^ "George Washington and the Evolution of the American Commander in Chief". The Colonial Williamsburg Foundation. 
  18. ^ James M. McPherson, Tried by War: Abraham Lincoln As Commander in Chief (2009)
  19. ^ John Milton Cooper, Woodrow Wilson: A Biography (2009) ch 18
  20. ^ Eric Larrabee, Commander in Chief: Franklin Delano Roosevelt, His Lieutenants, and Their War (2004)
  21. ^ The Awesome Power: Harry S. Truman as Commander in Chief. LSU Press. pp. 265–269. 
  22. ^ Larry Berman, Lyndon Johnson's War: The Road to Stalemate in Vietnam (1991)
  23. ^ "The Presidency of George H.W. Bush". University of North Carolina School of Education. 
  24. ^ Accessing the George W. Bush Presidency. Edinburgh University Press. p. 261. 
  25. ^ Presidential Decisions for War. JHU Press. 
  26. ^ a b "Executive Power". Legal Information Institute. Cornell University Law School. 2007-08-06. Retrieved 2017-01-27. 
  27. ^ "Archived copy" (PDF). Archived from the original (PDF) on 2011-06-07. Retrieved 2011-10-22. 
  28. ^ Dewar, Hellen; Biskupic, Joan (1998-06-26). "Court Strikes Down Line-Item Veto". The Washington Post. Retrieved 2017-01-28. 
  29. ^ Abramowitz, Michael (2006-07-24). "Bush's Tactic of Refusing Laws Is Probed". The Washington Post. ISSN 0190-8286. Retrieved 2017-01-28. 
  30. ^ "Presidential Powers". www.let.rug.nl. University of Groningen. Retrieved 2017-01-28. 
  31. ^ "Presidential Powers". 
  32. ^ Fairlie, John. "The Administrative Powers of the President". Michigan Law Review. 2 (3): 190–210. JSTOR 1273781 . 
  33. ^ "Annotated Constitution Article II". Legal Information Institute. Cornell University Law School. Retrieved 2017-01-27. 
  34. ^ Ornstein, Norm. "How the Assassination of James A. Garfield Haunts VA Reform". The Atlantic. Retrieved 2017-01-28. 
  35. ^ "Serving at the Pleasure of the President: The Nomination Papers of the United States Senate, 1789–1946". 
  36. ^ https://www.archives.gov/federal-register/codification/executive-order/11183.html Executive Order 11183--Establishing the President's Commission on White House Fellowships
  37. ^ "Archived copy". Archived from the original on 2012-05-08. Retrieved 2012-05-07.  2011 Annual Report to Congress on White House Staff
  38. ^ http://www.justice.gov/pardon/pardon_instructions.htm
  39. ^ "Frequently Asked Questions Concerning Executive Clemency | PARDON | Department of Justice". www.justice.gov. Retrieved 2017-01-28. 
  40. ^ Costly, Andrew. "Foreign Policy - Constitutional Rights Foundation". www.crf-usa.org. Retrieved 2017-01-28. 
  41. ^ Schulman, Marc. "Recognition". historycentral.com. Retrieved 2017-01-28. 
  42. ^ "Treaty vs. Executive Agreement". U.S. Department of State. Retrieved 2017-01-28. 
  43. ^ Louis, Fisher (2007). Constitutional Conflicts Between Congress and the President. University Press of Kansas. pp. 249–272. ISBN 0700615342. 
  44. ^ Greenberg, David (2001-11-30). "Lincoln's Crackdown". Slate. Retrieved 2017-01-28. 
  45. ^ Konkoly, Toni. "The Supreme Court . Law, Power & Personality . Famous Dissents . Korematsu v. United States (1944) | PBS". www.pbs.org. Retrieved 2017-01-28. 
  46. ^ Schwarz, Jon (2017-01-26). "Executive Orders Are Normal; Trump's Are Only Appalling Because of What They Say". The Intercept. Retrieved 2017-02-04. 
  47. ^ "Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)". Justia Law. Retrieved 2017-01-28. 
  48. ^ "C-SPAN Landmark Cases | Youngstown V Sawyer". landmarkcases.c-span.org. Retrieved 2017-01-28. 
  49. ^ "United States v. Nixon". Oyez. Retrieved 2017-01-27. 
  50. ^ "Summary of the Decision United States v. Nixon". landmarkcases.org. Retrieved 2017-01-28. 
  51. ^ "Presidential Immunity From Judicial Direction". Legal Information Institute. Cornell University Law School. Retrieved 2017-01-27.