“The idea that presidential power is fixed and static is a deep
misnomer. It mischaracterizes both the long trajectory of
presidential power over time and it also mischaracterizes what the
founders themselves had in mind. They fully expected various
branches of government to be pushing and pulling."
William Howell, PhD, University of Chicago
Author: Power Without Persuasion: The Politics Of Direct
Presidential Action
“There is hardly any part of the
system which could have been
attended with greater difficulty in
the arrangement of it than this...”
Alexander Hamilton
Federalist #67
• The Framers were designing
something completely new in
the office of the President. No
such thing had ever existed.
• There were models for the
legislature (British Parliament)
but not the executive.
• How would it work out?
They could not predict.
While they were unsure
about what they were
creating, the Framers knew
what they DID NOT want!
King George III of England
• The President might use the militia to
overpower state governments.
• If the President shares treaty-making
power with the Senate, then he might
become “a tool of the Senate.”
• Once elected, a President would
arrange to stay in office through bribery,
force, etc.
• How should the President be chosen?
Main concern: How to give
the chief executive just the
right amount of power.
“Make him too weak: the Legislature
will usurp his powers. Make him too
strong: he will usurp the Legislature.”
Gouverneur Morris
Some, like Roger Sherman,
wanted the President to be
“...nothing more than an
institution for carrying the will of
the legislature into effect...”
Madison and Hamilton argued for a strong executive
chosen independently of Congress. Their vision of a
powerful president was written into the Constitution.
1.
2.
3.
4.
5.
6.
7.
“Faithfully execute” the laws
Commander-in-Chief
Make treaties
Pardon or reprieve
Make appointments
Veto laws
Call Congress into session or
adjourn a session.
1. Power of persuasion
2. Leadership
3. Head of ever-expanding
executive branch
4. Deciding how to carry out
laws
Commander-in-chief of all the
U.S. armed forces.
Make treaties with foreign countries
(with the “advice and consent of the
Senate”).
May grant a pardon or reprieve to prevent a
trial or stop the punishment of someone.
Appoints ambassadors, justices
of the Supreme Court and other
federal judges, and all other
“officers” of the United States
(with the “advice and consent of
the Senate”).
May call Congress into a
special session. May also
end (“adjourn”) a session
of Congress.
The President can veto legislation
passed by Congress, sending it
back to the house from which it
originated. Congress can override
the veto with a 2/3 vote of both
houses.
President Obama has only vetoed
two pieces of legislation.
Must regularly inform the Congress
of the “State of the Union.”
Must meet with (“receive”) ambassadors
and leaders from other countries when
they visit the United States.
“Shall take care that the laws be faithfully
executed.” (He must carry out the laws passed
by Congress.)
While the Framers decided on a strong
executive, the power of the President has
grown over the years.
Powerful individuals have deliberately expanded
the power of the executive at the expense of the
legislature.
• The office was kept modest by the early
Presidents. Washington, Adams and Jefferson
made little effort to exercise power.
• Washington cast only two vetoes, Adams and
Jefferson cast none.
Andrew Jackson’s time as
President was marked by
major political changes:
• Expanding suffrage to include
non-property owning white males.
• Rapid westward expansion and
addition of new states.
• Increasing national tension over
the issue of slavery.
President Andrew Jackson
1829-1837
• Jackson was a war hero and extremely
popular with the people.
• He saw himself as a “Tribune of the
People” (Protector of their interests and
rights.)
• He believed in a strong and independent
President.
• He vetoed more acts of Congress than
all previous Presidents combined. None
were overridden.
• He vetoed laws because he didn’t like
them, not just ones he thought were
unconstitutional.
President Andrew Jackson
1829-1837
• Jackson’s most significant veto was the
renewal of the charter of the Second Bank
of the U.S.
• Jackson’s veto message had
constitutional reasoning, but was also
based on ideology and politics.
• The bank veto:
o signified the full involvement of the
President in the legislative process.
o asserted presidential authority
against the power of the courts.
o included language meant to appeal
to Jackson’s voter base – the small
farmer and working man.
After Jackson left office,
Congress quickly
reasserted its power
and – except for Lincoln
during the Civil War –
no President challenged
Congress for superiority
until the mid-20th
Century.
• The major expansion of the role of the federal
government during the Great Depression and
World War II led to increased Presidential powers.
• Since the 1930s, the chief executive has been
powerful no matter who was President.
The President is
more able to
attract public
attention.
The President has
better access to
mass media than
members of
Congress.
The President can
use the media to
build support for
his policies.
Frequent need
for decisive
action in
national
emergencies.
Wars, disasters
and other events
requires fast action.
A legislature cannot
provide such
leadership.
The ability of a
single,
commanding chief
executive has
strengthened
Presidential power.
American social
and economic
life has become
more complex.
People have
demanded a larger
role from the
federal
government.
The President’s role
as chief executive
gives him authority
to execute laws with
considerable
discretion.
Congress has
passed
thousands of
laws.
Laws are
usually only
basic outlines
for public policy.
Congress must
delegate authority
to the President for
carrying out the
laws.
Increased
importance of
foreign affairs.
The Constitution
gives the President
specific diplomatic
powers.
The President has
more power than
Congress in relating
to other nations.
• Greatest sources of presidential power: politics and public
opinion.
• The president’s power to persuade the people and other
politicians is the key to his success.
“Whoever moulds public
sentiment, goes deeper than he
who enacts statutes, or
pronounces judicial decisions.”
Abraham Lincoln
• Americans increasingly look to the
president for leadership, not just
in crises.
• Since the 1930s, Congress has
conferred to the President broad
grants of authority to achieve
general goals.
Getting “the treatment”
from LBJ.
The Power to Persuade: The Three Audiences
1. Fellow politicians and leaders
o Reputation among colleagues determines how much respect a
president gets.
o If he is respected he will be effective.
2. Party activists and officeholders (the “partisan grassroots”)
o Want the president to promote their principles
o Look to him to help them win reelection
3. The Public
o Publics (pl.) – many different interests
o Presidents have become increasingly
cautious about what they say in public.
Popularity and Influence
• President’s goal: turn his popularity into congressional
support for the president’s policies.
• “Coattails effect” has declined in recent years and is
small today.
• A president’s personal popularity can have a strong
effect on whether his program is passed by Congress.
• Members know is it risky to strongly oppose a popular
president’s policies because of the feeling that politicians
rise and fall together.
U.S. Constitution, Article I, Section 7
“If he approve [the bill] he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have originated, who
shall…proceed to reconsider it.”
VETO
• Veto message sent within ten days of the bill’s passage
• Pocket veto – If a bill is not signed within ten days, and
Congress adjourns during those ten days, the bill fails to
become a law.
• Congress rarely overrides vetoes.
THE LINE ITEM VETO
• A line-item veto gives the executive the power to veto
sections of bills without rejecting the whole thing.
• Many U.S. governors have the power of the line-item
veto.
• In 1996, Congress passed the Line-Item Veto Act giving
the U.S. president this power.
• President Clinton used the power to cancel parts of the
Balanced Budget Act of 1997.
CLINTON v. CITY OF NEW YORK
• QUESTION: Did the Line-Item Veto Act of 1996 violate the
Constitution’s carefully constructed separation of powers,
which gives Congress the power to create legislation?
Yes. Both the law and Clinton’s actions were
unconstitutional. The line-item veto is a way
of “amending” a law, which the president
does not have the authority to do.
EXECUTIVE PRIVILEGE
If the president and his Secretary of Defense have a private
conversation about the progress of a war, is the president
obliged to reveal the content of their discussion to
Congress on demand?
• Executive privilege: The right of the president to keep
private the communications between himself and his
principle advisors.
• Two reasons why presidents defend executive privilege:
o Separation of powers (branches should not interfere
with each other)
o Guarantee of privacy will ensure candor in
communication.
EXECUTIVE PRIVILEGE
• Not explicitly mentioned in the Constitution.
• Was first used by George Washington who refused to turn
over documents related to the Jay Treaty to the House.
• Over the years, the Supreme Court has not been uniform in its
decisions.
• Biggest recent case: U.S. v Nixon (1974)
Executive privilege is “fundamental to the operation of
Government and inextricably rooted in the separation of
powers under the Constitution.” It is “a necessary corollary
of the executive function vested in the President by Article
II of the Constitution.”
United States v. Nixon
EXECUTIVE PRIVILEGE:
UNITED STATES V. NIXON (1974)
• During the Watergate investigation, a
grand jury issued an indictment against
seven White House aides.
• The special prosecutor and the
defendant’s lawyer sought to obtain taped
recordings of White House conversations.
• President Nixon refused to hand over the
tapes, claiming the right to executive
privilege.
EXECUTIVE PRIVILEGE:
UNITED STATES V. NIXON (1974)
QUESTION: Is the President's right to safeguard
certain information, using his "executive privilege"
confidentiality power, entirely immune from
judicial review?
NO! The president does not have absolute,
unqualified executive privilege. “The
fundamental demands of due process of law
in the fair administration of justice" limits the
president’s privilege to keep information
confidential. The president can be required to
reveal information needed in a criminal
investigation.
EXECUTIVE PRIVILEGE:
NIXON v. FITZGERALD (1982)
• A. Ernest Fitzgerald was a civilian working for the Air Force. In 1968, he
testified before Congress regarding inefficiencies and cost overruns in the
production of the C-5A transport jet.
• One year later, Nixon fired him.
• The Civil Service Commission investigated the firing and ruled that the firing
was unjust, so Fitzgerald sued Nixon.
EXECUTIVE PRIVILEGE:
NIXON v. FITZGERALD (1982)
• QUESTION: Does the president have immunity from civil
prosecution when carrying out his official duties?
YES. The president "is entitled to
absolute immunity from damages
liability predicated on his official acts.“
This immunity is required by the doctrine
of separation of powers.
EXECUTIVE PRIVILEGE:
CLINTON v. JONES (1982)
• Paula Jones was an employee of the Arkansas state
government. She alleged that then-governor Bill Clinton made
“abhorrent” sexual advances toward her. She claimed that she
repeatedly spurned his advances and was eventually punished
by her supervisors.
• During Clinton’s term as president, Jones filed a civil lawsuit
against him.
• Clinton sought to have the suit dropped on the grounds of
presidential immunity, claiming that it distracted him from his
presidential duties.
EXECUTIVE PRIVILEGE:
CLINTON v. JONES (1982)
• QUESTION: Is a sitting president entitled to absolute immunity
from civil litigation arising from actions prior to taking office?
NO. The Constitution does not protect
the president from civil litigation
regarding actions taken before he
became president.
EXECUTIVE PRIVILEGE: SUMMARY
• The President has a legitimate need to keep secret
information, especially in the interest of national security.
• Used since the beginning: Washington refused to share
sensitive documents with Congress when they were
investigating the massacre of army troops by Native
Americans.
• Doctrine of separation of powers: one branch does not
have the right to inquire about the internal affairs of
another branch.
• There is not an “absolute unqualified Presidential privilege
of immunity.” (United States v. Nixon)
EXECUTIVE ORDERS
• Executive order: An official document through which the
President manages the operations of the federal
government.
• The power to issue executive orders and proclamations
derives from the Constitution:
o Power of commander-in-chief
o Power to faithfully execute the laws.
o “Executive power shall be vested in the President”
• It also derives from any statutory authority granted to
the President by Congress.
• When based on legitimate authority, they have the force
of law.
EXECUTIVE ORDERS
• Executive orders enforce the Constitution, federal
statutes, or treaties. (Example: National Defense Resources
Preparedness – Reorganizes how resources would be
managed in the nation’s defense under the Defense
Production Act of 1950.)
• They can also establish or modify rules and practices of
executive departments and agencies. (Example: Establishing
Hurricane Sandy rebuilding task force to coordinate the
work of federal agencies.)
EXECUTIVE ORDERS
• First executive order: 1793 – George Washington
issued a proclamation requiring citizens to remain
neutral in hostilities between England and France.
• Lincoln: Emancipation Proclamation and suspension
of habeas corpus.
• Use of executive orders was greatly expanded by
Teddy Roosevelt.
“My belief was that it was not only his right but his duty to do anything that
the needs of the Nation demanded unless such action was forbidden by the
Constitution or by the laws.”
• Woodrow Wilson expanded emergency powers
during WWI and issued over 1,800 executive orders.
EXECUTIVE ORDERS
• FDR was given wide latitude by Congress to implement New
Deal programs.
• Youngstown Sheet & Tube Co. v Sawyer (1952)
o Truman ordered the Commerce Dept. to take over operations of this
important steel producer during WWII.
o SCOTUS ruled in favor of the steel company.
o President did not have Constitutional or statutory authority.
o Presidential power cannot be implied from
the aggregate of his Constitutional powers.
SIGNING STATMENTS
• Signing statement: A presidential document that reveals what the
president thinks of a new law and how it ought to be enforced.
• They are the President’s interpretation of the laws passed by Congress.
• First used by James Monroe.
• Used much more frequently today. (Reagan – 71; GHW Bush – 141;
Clinton- 105; GW Bush – 750)
• They are used by presidents to assert their
authority against Congress.
• Members of Congress have criticized them as
a line-item veto. The Democratic-controlled
110th Congress considered challenging their
constitutionality.
In 1964, after Vietnamese
submarines torpedoed the
U.S.S. Maddox off the
coast of Vietnam,
President Johnson ordered
military strikes. Congress
fully supported his
decision (Senate 88 to 2
and House 416 to 0)
The U.S. military fought in Vietnam from 1964 until 1973. By
the early 70s, America had grown very frustrated with the
war. Congress reflected that frustration.
In 1973, Congress passed the War Powers Resolution.
President Nixon called it unconstitutional and vetoed it.
Congress overrode the veto.
The War Powers Resolution was an
attempt to restrict the president’s war
powers. It specifies:
• If the president sends U.S. troops into
combat, he must report it to Congress
within 48 hours.
• The commitment must end within 60
days unless Congress grants an extension.
• Congress can pass a concurrent
resolution requiring the president to
withdraw troops.
Source: National Archives
http://www.archives.gov/legislative/gallery/gallery.html
• Every president has a distinct personality
which defines how the White House is
organized and run.
• People judge the president not just on
policy accomplishments but on their
perception of his character.
• The people can’t judge Congress on its
“personality,” but they do judge presidents
that way.
• Eisenhower: orderly, military style;
delegation of authority to trained
specialists.
• Kennedy: bold, articulate, amusing
leader; improviser who bypassed
traditional lines of authority.
• Johnson: master legislative
strategist; dealmaker; persuasive in
face-to-face politics; not good at
persuading the public.
• Nixon: expert in foreign policy; disliked
personal confrontation; tried to
centralize power in the White House;
suspicious of media.
• Carter: Washington outsider; naïve
regarding Washington politics; tended to
micromanage.
• Reagan: set policy priorities and then
gave staff wide latitude; leader of public
opinion; the Great Communicator.
• Clinton: good communicator; very
personable; pursued liberal agenda,
then centrist policies after 1994.
• George W. Bush: tightly run White
House; agenda became dominated by
foreign affairs following the 9/11
attacks
•Barack Obama: superb communicator,
cerebral.
• Presidents begin term with public confidence. They try to
convert popularity into congressional support for programs.
• For a president, public support = political power.
• A president’s claim to leadership is legitimized by high
popularity.
Public
support for
president’s
programs
Increased
likelihood of
reelection
Congressional
support for
president’s
programs
• Early in president’s term, members of Congress are more
likely to support presidential programs. It is politically risky to
oppose a popular president.
• As public support slips, Congress is less likely to support the
president’s agenda.
• Presidents know that their popularity will be highest
after the election and is certain to decline over time.
• Honeymoon period: The time after the election when the
president, the people and Congress are happy with their
relationship.
• Example of “honeymoon period” – FDR’s one-hundred
days in 1933.
POPULARITY = INFLUENCE
= POWER