The Boundaries of Presidential
Power
Formal vs. Informal Power


Formal: granted by the Constitution
(AKA “express(ed)”, “explicit”,
“constitutional”, “de jure”)
Informal: not explicitly granted by
the Constitution, but exist anyway
(AKA “implied”, “de facto”)
• NOT NECESSARILY UNCOSTITUTIONAL
*Note that this language applies to the
powers of Congress as well.
I. Ceremonial Head of State
(Formal?)

The Roosevelt Taft
Debate
II. President as Chief Executive
(Formal?)



“He shall take Care that the Laws be
faithfully executed.”
“executive power shall be vested in a
President”
Are there limits to the power to “take
care” (can he exercise judgment or
just do what Congress says?) and
does “vested” imply wide discretion?
Abraham Lincoln and Presidential
prerogative

“I felt that measures
otherwise
unconstitutional
might become lawful
by becoming
indispensable to the
preservation of the
Constitution”
Issue a: Suspension of
habeas corpus
Lincoln and Taney
Ex Parte Merryman (1861)
Ex Parte Milligan (1866)
George W. Bush and Jose’ Padilla

From
“enemy
combatant”
to “civilian”
Supreme Court Cases regarding
Iraq War prisoners




1. Hamdi v. Rumsfeld (2004)
Re: US citizens detained as enemy
combatants on American soil
Citizens must get a “meaningful
opportunity” to challenge their
detention.
Hamdi convicted or terrorism August
2008. Released and deported to
Saudi Arabia in 2009



2. Rasul v. Bush (2004)
Court found that Guantànamo Bay
was within US jurisdiction and
subject to its laws, meaning
detainees there (including noncitizens) were entitled to due process
in US courts (incl. habeas corpus)
Bush admin. objected to Sup. Crt.
hearing the case (claimed no
jurisdiction in GTMO)


3. Hamdan v. Rumsfeld (2006)
Concerned the military commissions (courts or
tribunals) established at Guantánamo Bay to try
some detainees in the aftermath of 9/11.
• Civilian court: must be public, requires unanimous jury
(of peers) decision to convict, crimes defined by
legislature, can be appealed to higher court
• These special military tribunals: could be secret,
requires only 2/3 vote of jury (of military officers) to
convict, crimes defined by Defense Department (works
for President), cannot appeal (though a panel of military
officers can recommend a re-trial)

Court found that by creating the commissions
without asking Congress to agree, the president
had overstepped his authority under the
Constitution’s separation of powers. (Congress
has Const. power to establish “inferior” courts.)




Boumediene v. Bush (2008)
Ruled part of “Military Commissions Act of 2002”
unconst.
Purpose of Act: “To authorize trial by military
commission for violations of the law of war, and
for other purposes”
Potential to be used to declare US citizens as
unlawful enemy combatants and therefore no
habeas corpus
Issue b: Truman and Steel Seizure
Youngstown Sheet and Tube v. Sawyer
Truman tried to seize
steel manuf. to prevent
a strike during the
Korean War.
•Court ruled seizure
(“eminent domain”) is
the power of Congress.
•
Issue c: Lawmaking through
Executive Orders

Truman and the desegregation of the
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. 11246

“all Government contracting
agencies shall include in every
Government contract hereafter
entered into the following
provisions:” “The contractor will
take affirmative action to ensure
that applicants are employed, and
that employees are treated
during employment, without
regard to their race, color,
religion, sex or national origin”
Issue d: Executive Privilege
(Formal?)
President’s right to resist
subpoenas in order to
effectively carry out
executive duties
Claimed by both
Washington and Jefferson
Const. mentions right to
have counselors
Has been upheld by Sup
Crt.

US v. Nixon (1974)
Prosecutor wanted tapes of
conversations involving
Watergate
Nixon 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 case
Bush Administration and Executive
Privilege

Argued that
Executive Privilege
precluded
Congressional
testimony of
Harriet Miers and
others regarding
U.S. Attorney
firings.
Vice President Cheney:
Executive or Not?


2001: Congressional probe
into energy policy “would
unconstitutionally
interfere with the
functioning of the
executive branch.”
In Court case, avoided
claim of “executive
privilege.”
Cheney in 2007



Nat’l Archives sought to inspect the
office of the VP in accordance w/ an
EO endorsed by GWB (to check if
classified materials handled properly)
To avoid the inspection, Cheney
claimed the Vice Presidency is not
“an entity within the executive
branch.”
Claim later withdrawn
III. President as Chief Legislator:
Innovative uses of “the veto”
(Formal?)



“Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it
become a Law, be presented to the President of
the United States; If he approve he shall sign 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
can veto” so he could send a message to
Congress.
Presidential Vetoes, 1933–2007
President
Coincident
Congresses
Regular
vetoes
Pocket
vetoes
Total
vetoes
Vetoes
overridden
F. D. Roosevelt
73rd–79th
372
263
635
9
Truman
79th–82nd
180
70
250
12
Eisenhower
83rd–86th
73
108
181
2
Kennedy
87th–88th
12
9
21
—
L. B. Johnson
88th–90th
16
14
30
—
Nixon
91st–93rd
26
17
43
7
Ford
93rd–94th
48
18
66
12
Carter
95th–96th
13
18
31
2
Reagan
97th–100th
39
39
78
9
G.H.W. Bush1
101st–102nd
29
15
44
1
Clinton
103rd–106th
36
1
37
2
G. W. Bush
107th–108th
11
1
12
4
1,492
1,066
2,558
108 (4%)
Total in history
Pocket Veto (Formal?)




Normally only available in last 10 days of session
of Congress
Nixon tried to use the pocket veto during
Christmas recess
Court declared unconstitutional because not
prevented from returning bill to Congress
Now only allowed when Congress adjourns (“sine
die” without setting a day for return)
Item veto (Formal?)
Line Item Veto Act of
1996
Only for appropriations
leg. (primarily to
prevent excessive pork
defense spending)
Supported by Rep
because would reduce
deficit
One year wonder
Clinton v. New York
declared unconst.
Request for
reinstatement by Bush

The Signing Statement
(Formal?)



Statement of how President intends to implement
law
Bush—12 vetoes, 4 overridden
Bush added signing statements challenging the
constitutionality (usually as interfering w/ power
of President) of more than 1,100 separate
sections in 150 laws. All the presidents who came
before have added signing statements totaling
600 sections of law.
• Domestic spying
• “secret operations”
• Torture ban
Chadha Family and Legislative
Veto
AKA Congressional Veto

Part of a law that requires
the Exec. Branch to check
with Congress before
acting

Ruled unconstitutional
(separation of powers),
but used anyway

IV. President as Commander-inChief (Formal?)
“The President shall
be Commander in
Chief of the Army
and Navy of
the United States.”
What about the Air
Force?

Strategic Placement of Troops:
Theodore Roosevelt and the “White
Fleet”
Roosevelt sent 16
battleships to Asia as show
of US power and presidential
authority
He 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:
Undeclared Wars
War Powers Resolution (or Act),
1973
Passed over Nixon’s veto.
President can commit forces for
60-90 days, then forces must
withdraw unless Congress
declares war
Congress can pass concurrent
resolution (w/ no veto) at any time
to end American participation in
hostilities
All Presidents since 1973 have
considered unconstitutional
(Why?)
Generally ignored and Congress
reluctant to use (Why?)
George H.W. Bush &
Iraq
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
(Formal?)

“He shall have power, by and with
the advice and consent of the
Senate, to make treaties, provided
two thirds of the Senators present
concur”
START Nuclear Arms Reduction Treaty
Woodrow Wilson and The Treaty of
Versailles
Checks and balances
Executive Agreements
(Formal?)


Not formal treaty
(gentlemen’s agreement
between heads of state)
Increased use (Why?)
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.

Bricker Amendment
proposed to limit this
practice
Other Powers (Formal?)




Appoint ALL national judges
Appoint Cabinet and heads of agencies
Pardon criminals (also grants clemency AKA
“commutes” sentences)
Impounding funds? (obstructing laws by
instructing bureaucracy not to spend money
allocated by Congress for a project; started w/
Jefferson)
• Congress has passed the Congressional Budget
and Impoundment Control Act of 1974 to end
this practice
• All Presidents since Reagan have called for
restoration of this power.