LECTURE #12:
The Presidency
Presented by
Derrick J. Johnson, MPA, JD
Advanced Placement United States Government
& Politics,
School for Advanced Studies
The Presidency in the Constitution
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Article II of the Constitution defines the qualifications, powers,
and duties of the president and carefully notes some important
checks of the executive branch by the legislature.
Qualifications:
 President must be a natural born citizen
 President must have lived in the United States for at least 14
years (don’t have to be consecutive).
 President must be at least 35 years old.
Theodore Roosevelt was the youngest man to serve as
president.
 John F. Kennedy was the youngest man to be elected as
president.
 Ronald Reagan was the oldest man to be elected as
president.
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Powers & Duties:
 Military Power
 Commander-in-Chief of the armed forces.
 Limited by the fact that only Congress can declare war.
 President can deploy troops by this power is limited by
the War Powers Resolution in 1973, which requires the
president to consult with Congress when activating troops
and unless Congress approves the use of troops within 60
days or extends the 60 day time period, the troops must
be withdrawn.
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Diplomatic Power
 Is chief diplomat for the United States
 Makes treaties with foreign nations with the “advice and
consent” of the Senate.
 Presidents have managed to get around the “advice and
consent” of the Constitution by forgoing treaties in favor
of executive agreements (which is essentially the same
thing as a treaty).
 The Constitution gives the president the power of
diplomatic recognition (the power to recognize foreign
governments). Ex: People’s Republic of China (1949) and
the U.S.S.R. (1917)
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Appointment Power
 President can appoint ambassadors, cabinet members,
federal judges and other public officers only with the
“advice and consent” of the Senate.
 President has the power to remove all appointed officials
except federal judicial appointments (see Myer v. the United
States). Judges may only be removed through
impeachment.
Judicial Powers
 The president has the power to appoint members of the federal
judiciary, including the members of the U.S. Supreme Court.
 The president is also charged with enforcing the decisions of the
U.S. Supreme Court.
 In addition to appointing members of the judiciary, the president
can also grant reprieves, pardons and amnesty.
Party Powers
 The president is the recognized leader of the party.
 He chooses vice-presidential nominee and he strengthens the
party by helping to elect members of his own party (coattails).
 The president appoints party members to government positions
(patronage).
 Influences policies and platform of the party.
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Veto Power
 A president can veto a legislative bill by returning it, along
with a veto message or explanation, within ten days to the
house in which it originated.
 Congress may override his veto by two-thirds majority in
each house.
 President may exercise the pocket veto. If the president
does not sign the bill within ten days and Congress has
adjourned, the bill will not become law.
 One president, Bill Clinton, had the power of the line
item veto (the ability to veto provisions in a bill without
vetoing the whole bill), however, its use was declared
unconstitutional in Clinton v. New York City (1998).
Clinton v. City of New York (1998)
Facts. Appellant, President Clinton, exercised his power under the
Line Item Veto Act of 1996 by canceling two provisions in the
Balanced Budget Act of 1997 that adversely affected New York.
Appellees, New York City and several private organizations,
challenged the constitutionality of the cancellations. The Supreme
Court of the United States found that the challengers met both
prudential and Article III standing requirements, and further held
that the cancellation provisions in the Line Item Veto are not
authorized by the Constitution.
Issue: Whether the provisions in the Line Item Veto Act that allow
the President to cancel certain types of provisions of a law are
constitutional.
Held: No. Judgment affirmed. There is no provision in the
Constitution authorizing the President to enact, amend, or repeal
statutes, although he may initiate and influence legislative proposals.
Cancellations are the functional equivalent of partial repeals of Acts
of Congress. The Line Item Veto Act gives the President unilateral
power to change the text of enacted statutes. The Act’s cancellation
provisions violate Article I Section:7 of the Constitution.
Rule of Law: The provisions allowing cancellations in the Line
Item Veto Act are unconstitutional because it gives the President
unilateral authority to change the text of duly enacted statutes, and
thus violate :7 of the Constitution.
Dissent. The challengers have standing, but the Line Item Veto
Act does not violate the Constitution because it does not violate
any literal text of the Constitution. Further, the Act does not violate
the Separation of Powers doctrine because it does not encroach on
Congress’ power.
Concurrence: The Act will restrain excessive spending, but it must
be invalidated for the reasons given by the majority. The
President’s discretion under the Line Item Veto Act is no broader
than the discretion traditionally conferred upon him in his
execution of the spending laws. The President’s action authorized
by the Act is not a line-item veto, and thus does not offend Article I
Section:7.s Article I Section.
Constitutional Origins of the Presidency
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The framers of the constitution studied the writings of philosophers like
Montesquieu and Locke, analyzed the powers of the British monarchs,
and studied the role of governors in American colonial governments.
There were many that were hesitant to have a single executive under the
new constitution. The final compromise created a single executive with
powers limited by checks and balances of the legislative and judicial
branches.
Constitutional provisions limited the early presidency, although the
personalities of the first three presidents (Washington, Adams and
Jefferson) shaped it into an influential position by the early 1800s.
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However, all through the 1800s up until the 1930s, Congress was
the dominant branch of national government.
In the past seventy years or so, the balance of power changed
dramatically so that the presidency is on par with Congress.
Strengthening the Presidency
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The framers fashioned the presidency in the image of George
Washington.
Washington’s wisdom, moderation, and dignity defined the more
formal duties and powers of the office.
Other strong presidents have impacted the presidency and
expanded its power. Examples include:
 Andrew Jackson expanded the use of the veto power.
 Abraham Lincoln expanded the commander and chief powers
to new heights (see Ex Parte Merryman)
 Franklin D. Roosevelt expanded the domestic policy powers
and influence of the president.
As a result of the evolution of the presidency, many informal
qualifications, powers, and duties of the president have evolved
that are not mentioned in Article II of the Constitution.
Ex Parte Milligan (1866)
Facts: The case came before the court upon a certificate of division
from the judges of the Circuit Court for Indiana, on a petition for
discharge from unlawful imprisonment. The case involved the
Judiciary Act of 1789, section 14. This enacts that the Circuit Courts
of the United States shall have power to issue writs of habeas corpus.
Also, that either of the justices of the Supreme Court, as well as
judges of the District Court, shall have power to grant writs of
habeas corpus for the purpose of an inquiry into the cause of
commitment.
Milligan, not a resident of one of the rebellious states, or a prisoner
of war, but a citizen of Indiana for twenty years past and never in
the military or naval service, is, while at his home, arrested by the
military power of the United States, imprisoned, and, on certain
criminal charges preferred against him, tried, convicted, and
sentenced to be hanged by a military commission, organized under
the direction of the military commander of the military district of
Indiana.
Issue: Upon the facts stated in Milligan's petition, and the exhibits
filed, had the military commission mentioned in it jurisdiction,
legally, to try and sentence him?
Holding: No
Majority Reasoning: The Court decided that military rule could not
supersede the civil courts in areas where the civil courts and government
remained open and operational. Indiana had been a loyal state, and its
regular government and courts had functioned throughout the war. In
such a situation, the military courts had no jurisdiction over civilians. If
armies were collected in Indiana, they were to be employed in another
locality, where the laws were obstructed and the national authority
disputed. On her soil there was no hostile foot; if once invaded, that
invasion was at an end, and with it all pretext for martial law. Martial law
cannot arise from a threatened invasion. The necessity must be actual and
present; the invasion real, such as effectual closes the courts and deposes
the civil administration.
Notes: In Ex Parte Milligan, the Court asserted that the Writ is not
suspended but only the privilege. The Writ would issue and the issuing
court on its return would determine whether the person applying can
proceed, thereby passing on the constitutionality of the suspension and
whether the petitioner is within the terms of the suspension.
Executive Privilege
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The Constitution says nothing about the president’s right to keep
private communications between himself and his principal advisors, but
presidents have traditionally claimed the privilege of confidentiality –
executive privilege.
Their claims are on two grounds:
 Separation of Powers (prevent one branch of government from
interfering with the inner workings of another).
 The need for candid advice in private without fear of immediate
press and public reaction.
Congress has never cared for executive privilege. However, it was not
until 1973, under the cloud of the Watergate investigation, that the U.S.
Supreme Court began to question its use.
United States v. Nixon (1974)
Facts: The special prosecutor in the Watergate scandal subpoenaed
the tape recordings of conversations involving the President and his
advisers regarding the scandal. The President’s counsel moved to
quash the subpoena citing Article II of the United States
Constitution (the “Constitution”) and its grant of privilege to the
President. The President’s counsel also argued it was a nonjusticiable question because it was a disagreement between parts of
the executive branch.
Issue: Is the President’s Article II constitutional privilege absolute?
Held: The President’s executive privilege is not absolute and must
bend to Amendment 4 and Amendment 5 requirements of speedy
and fair trials and of the ability of defendants to face their
accusers. Courts are not required to proceed against the President
as if the President was any other individual. Courts should review
communications claimed to be privileged in camera (by the judge
only in chambers).
Rule of Law: Although a President deserves great deference
regarding his Article II constitutional privilege, that privilege is not
absolute and must be balanced against other constitutional interests.
Clinton v. Jones (1998)
Facts: Paula Jones (Plaintiff) alleged that President Clinton (Defendant)
sexually harassed her. This conduct allegedly occurred in 1991.
Afterwards, Defendant was elected President of the United States.
Plaintiff’s complaint contains four counts, tow for violations of 42 U.S.C.
Section:Section:1983 and 1985, and state law claims for intentional
infliction of emotional distress and defamation. The alleged misconduct
of Defendant was unrelated to any of his official duties as President of the
United States and, indeed, occurred before he was elected to that office.
Defendant filed a motion to dismiss the suit until the termination of his
presidency. The district court denied Defendant’s motion. Defendant
appealed.
Issue: Does the President have temporary immunity from civil
damage litigations arising out of acts committed prior to his
presidency?
Held: No. Judgment for Plaintiff affirmed. Defendant’s principle
submission – that in all but the most exceptional cases, the
Constitution affords the President temporary immunity from civil
damages litigation arising out of events that occurred before he took
office – cannot be sustained on the basis of precedent. The principle
rationale for affording certain public servants immunity form suits for
money damages arising out of their official acts is inapplicable to
unofficial conduct. The burden of the President’s time and energy that
is a mere byproduct of such review surely cannot be considered as
onerous as the direct burden imposed by judicial review and the
occasional invalidation of his official actions. The Court therefore held
that the doctrine of separation of powers does not require federal
courts to stay all private actions against the President until he leaves
office.
Rule of Law: The President does not have temporary immunity
from civil damage litigations arising out of acts committed prior to
his presidency.
In Nixon v. Fitzgerald (1982), the Supreme Court defined executive
privilege to state that a president could not be sued for damages
related to decisions made while in office.
However the Clinton v. Jones (1998) case made it clear that the
president has no such protection for suits occurring before he takes
office.
Executive Orders
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Congress shall allow the president to issue executive orders that
shall have the force of law. These executive orders may enforce
the Constitution, treaties, or legislative statutes, or they may
establish or modify rules and practices of executive agencies.
The only restriction on executive orders is that they must be
published in the Federal Register, a daily publication of the U.S.
Government.
Impoundment of Funds
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Impoundment is the practice of refusing to spend money
appropriated by Congress. Although many presidents have
impounded funds in the past, the practice reached its zenith with
President Nixon.
A major goal of the Nixon Administration was to reduce spending,
and when the Democratic Congress passed spending bills, he
responded by pocket-vetoing twelve bills and then by impounding
funds appropriated under other laws he had not vetoed.
Congress in turn passed the Budget Reform and Impoundment Act
of 1974 that required the president to spend all appropriated fund,
unless Congress approves the impoundment.
Agenda Setting
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The Constitution provides the basis for the important power of agenda
setting – or determining policy priorities – for the nation.
Article II, Section 3 requires the president to “give Congress
Information of the State of the Union.”
Even though Congress is charged with passing laws, the president is
expected to make policy proposals in many areas.
Presidents often initiate foreign policy, economic goals and plans, and
program s that improve the quality of life of citizens.
FDR set the precedent when he shepherded his New Deal policies
through the legislature, taking responsibility for programs to get the
country out of the Great Depression.
The Power of Persuasion
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An effective president is a good politician, a mobilize of influence
in the American political system.
Because of his formal powers are limited, he must spend much time
persuading people to support his agenda.
The president’s persuasive powers are aimed at three audiences:
 Fellow politicians and leaders in Washington
 Party activists and office holders outside of Washington
 The public
All three audiences influence the decision making process, and the
president has visibility and power to persuade them to listen to his
priorities.
The President as Morale Builder
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People turn to the president for meaning, healing, assurance, and
a sense of purpose.
This function of morale builder is particularly important during
times of crisis, such as the period following the September 11,
2001 attacks.
The president is expected to help unify the nation, represent our
common heritage, and create a climate that encourages diverse
elements to work together.
Selection of the President
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The method of selection of the president was one of the most
controversial topics at the Constitutional Convention.
Most framers did not trust the public to directly select the
president.
The framers settled on the creation of the electoral college, a
group of electors chosen by each state who would meet in their
respective state capitals to vote for the president and vicepresident.
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Each state’s electors mirror the number of senators and
congressmen they have. Each state has at least three electoral vote.
There are 538 presidential electors. In order to win the presidency, a
candidate must win at least 270 electoral votes.
Impeachment of the President
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The Constitution provides a way to remove a president before
his term is over, but it is not an easy process.
The House of Representatives may, by majority vote, impeach
the president for “Treason, Bribery, or high Crimes and
Misdemeanors.”
Once the House impeaches the president, the case goes to the
Senate, which tries the president, with the Chief Justice of the
U.S. Supreme Court presiding. By two-third vote, the Senate may
convict and remove the president from office.
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Three Presidents have been subjects of impeachment:
 Andrew Johnson – was impeached by the House in 1868. The
Senate failed to remove him.
 Richard Nixon – the House judiciary committee voted to
recommend impeachment for his dealings in the Watergate
Scandal in 1974, but he resigned before the House could vote on
impeachment.
 Bill Clinton – was impeached by the House in 1998 for the
Monica Lewinsky Scandal. The Senate failed to remove him.
No president has ever been convicted by the Senate. Fifteen federal
judges have been impeachment by the House, and seven of these
have been convicted by the Senate.
The Vice-President
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During much of American history, the office of the vice
president has been seen as one to be avoided by ambitious
politicians.
According to the Constitution, the Vice-President has two
duties:
 Preside over the Senate, casting tie-breaking votes if
necessary.
 Help determine presidential disability under the Twenty-Fifth
Amendment and take over the presidency if necessary.
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Because the vice-president may some day become president, the
formal qualifications for vice president is the same as those for
the president.
The vice president serves for a four year term; however, the
number of terms the vice president is not limited.
The selection of the nominee for the vice president occurs at the
national convention when the presidential nominee select a
“running mate.”
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Often the choice of nominee is influenced by the party’s desire
to balance the ticket, that is, to improve a candidate’s chances of
winning the election by choosing someone from a different
faction of the party or from a different geographic section of the
country.
Today, the vice president is often given a larger role in
government, taking part in cabinet meeting, serving on the
National Security Council, and acting as the president’s
representative on diplomatic missions.
The White House Office
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Some of the most influential people in government are in the
president’s White House Office.
The organization of the staff is entirely up to the president, and their
titles include the following:
 Chief of Staff
 Counsel
 Counselor
 Assistant to the President
 Special Consultant
 Press Secretary
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These aides are appointed by the president without Senate
confirmation.
Most of these staff members leave before the term expires.
The Executive Office of the President
 The Executive Office consists of agencies that report directly to
the president and perform staff services for him.
 The president appoints the top positions, but unlike the White
House Staff members, the Executive Office of the appointees
must be confirmed by the Senate. The Executive Office of the
President agencies include the following:
 The National Security Council
 The National Economic Council
 The Office of Management and Budget (OMB)
The Cabinet
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The cabinet is the oldest traditional body of the executive
branch. The first cabinet members were appointed by
Washington to serve as secretary of the state, secretary of the
treasury, secretary of war and the attorney general.
When the cabinet meets, the secretary of state sits on one side of
the president and the treasury on the other side.
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Today cabinet officers are the heads of fifteen major departments.
The order of their creation is important for protocol. They are as
follows:
 Department of State (Established in 1789)
 Department of Treasury (Established in 1789)
 Department of Defense/War (Established in 1789)
 Department of Interior (Established in 1849)
 Department of Justice (Established in 1870)
 Department of Agriculture (Established in 1889)
 Department of Commerce (Established in 1903)
 Department of Labor (Established in 1913)
 Department of Health and Human Services (Established in
1953)
 Department of Housing and Urban Development (Established
in 1965)
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Department of Transportation (Established in 1967)
Department of Energy (Established in 1977)
Department of Education (Established in 1979)
Department of Veteran Affairs (Established in 1989)
Department of Homeland Security (Established in 2002)
The original cabinet members (Secretaries of State, War, Treasury
and the Attorney General) are still referred to as the inner cabinet
and they generally have more influence than the other positions.
Even though the president appoints the cabinet secretaries, he has
limited control over departments.
THE END OF LECTURE #12