Lecture – The Presidency
1. The Constitutional Basis of the Presidency. Article II establishes a unitary executive, vesting
executive power in one president. Then Section I determines the choosing of the president,
implementing an electoral college to limit the presidency’s power. This republican solution of
indirect election sought to create a strong executive responsible to the state legislatures rather
than to the people. However, the presidency strengthened with the development of the
national convention system of nominating presidential candidates, because it gave the
presidency independence from Congress and also gave it a mass popular base. Conventions
replaced caucuses, closed meetings of party leaders to select candidates and plan strategy. The
real expansion of the executive came during the Franklin Delano Roosevelt (FDR) administration
of the 1930s and 1940s.
2. The Constitutional Powers of the Presidency. Article II, Section 2 and 3, outline presidential
powers and duties. They include expressed, delegated, and inherent powers.
A. Expressed Powers. These are specific powers granted to the president under Article II of
the Constitution. For example, the president is authorized to make treaties, grant pardons,
and nominate judges and other public officials. These powers fall into several categories:
 Military: Article II, Section 2, includes the “commander in chief” clause.
 Judicial: Article II, Section 2, also provides the power to “grant reprieves and
pardons….except in Cases of Impeachment.”
 Diplomatic: Article II, Section 2, provides power to “make treaties” and to
“receive ambassadors.”
 Executive: Article II, Section 3, authorizes the president to see to it that all the
laws are faithfully executed. Section 2 gives the chief executive power to
appoint, remove, and supervise all executive officers and appoint all federal
judges.
 Legislative: Article I, Section 7, and Article II, Section 3, give the president the
power to participate in the legislative process. Presidential powers are
explained as follows.
1. Military. Among the most important powers, the position of commander in
chief makes the president the chief military authority in the United States, with
control over the entire Department of Defense. This is the president’s power to
act as commander of the national military and state national guard units (when
they are called into service). The president is also head of the nation’s
intelligence network.
2. War and Inherent Presidential Power. Congress declares war. However,
presidents try to deploy the American military without congressional approval.
In 1973, in response to Nixon’s unilateralism, Congress passed the War Powers
Resolution, a congressional resolution indicating that the president can send
troops into action abroad only with congressional authorization, or if American
troops are already under attack or serious threat. Still, presidents generally
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ignore the War Powers Resolution, claiming inherent executive power to defend
the nation and send troops into action.
Military Sources of Domestic Power. Presidential military power extends to the
domestic arena. Article IV, Section 4, provides for the national government’s
protection of the states “against invasion…and…domestic violence.” Congress
had gradually made this a presidential power, under the commander in chief
clause, to discharge these obligations. Presidential discharge of this emergency
power is limited to the states’ approval. Only in response to a state’s request
may the president send national troops to restore the public order, although
exceptions to this rule may apply. The use of military powers by the president
extends executive powers by making federal grants, insurance, and assistance
available. Recently, the USA PATRIOT Act expanded executive power by giving
executive agencies the ability to engage in domestic surveillance activities,
including electronic surveillance, and by restricting judicial review of such
efforts.
Judicial: This is the president’s power to grant pardons and amnesties.
Diplomatic. The president in the U.S. head of state and chief representative in
dealings with other nations. Presidents can receive ambassadors and recognize
other countries to enter treaties with them. In recent times, presidents have
used executive agreements (agreements made between the president and
countries that have the force of a treaty but do not require the Senate’s advice
and consent) to bypass the Senate’s approval. There are two types of executive
agreements. One is the executive-congressional agreement (submitted to a
simple majority congressional approval). The other type is the sole executive
agreement between the president and a foreign state.
Executive Power. Article II, Section 2, gives the chief executive power to
appoint, remove, and supervise all executive officers and appoint all federal
judges. Appointment power makes the president the chief executive officer of
the nation. Section 3 stipulates that the president must see that all laws are
faithfully executed. Another component of presidential power is executive
privilege. This is the claim that confidential communications between a
president and close advisers should not be revealed without the consent of the
president. This type of secrecy is often used under a claim of national security
protection.
The President’s Legislative Power. Article I, Section 7, and Article II, Section 3,
gives the president the power to participate in the legislative process. The first
provision says the president “shall from time to time give to Congress
information of the state of the union, and recommend to their consideration
such matters as he shall judge necessary and expedient.” Presidents use the
State of the Union address public awareness. The second provision is the veto
power (the president’s constitutional power to turn down acts of Congress). A
presidential veto may be overridden by a two thirds congressional vote. Under
the pocket veto (a presidential veto that is automatically triggered if the
president does not act on a given piece of legislation passed during the final ten
days of a legislative session) Congress does not have the option to override.
Also, the constitution provides for legislative initiative (the president’s inherent
power to bring a legislative agenda before Congress). Presidential initiatives
involve policy making with Congress and the power to issue executive orders
(rules or regulations issued by the president that have the effect and formal
status of legislation). This last power gives the executive a management tool to
make rules setting procedures, etiquette, chains of command, and functional
responsibilities.
B. Delegated Powers. These are constitutional powers that are assigned to one governmental
agency but that are exercised by another agency with the express permission of the first.
Article II declares that the president “shall take care that the laws be faithfully executed.”
This language implies that Congress is to delegate the power to identify or develop the
means to carry out its decisions. Many presidential powers are not found in the
Constitution. However, Congress has voluntarily given a great deal of power to the
president and the executive branch. Congress cannot implement the laws it makes. It must
rely on the executive branch to do so. As the executive branch carries out congressional
legislation, its agencies develop thousands of rules, regulations, orders, and findings at their
own discretion. This is a result of congressional legislation’s often not being very detailed.
Since the New Deal, Congress has given executive agencies broad mandates, drafting
legislation, offering clear standards and guidelines for executive implementation.
C. Inherent Powers. Presidents claim there is a third source of power beyond express and
delegated powers. These powers are not expressed in the Constitution, by they can be
inferred from it because they stem from “the rights, duties, and obligations of the
presidency.”
3. The Presidency as an Institution. The president has thousands of officials and staffers who
work for, assist, and/or advise him. Together, these individuals make up the institutional
presidency, giving the president a capacity for action.
A. The Cabinet. The secretaries, or chief administrators or heads, of the major departments of
the federal government make up the Cabinet. Cabinet secretaries are appointed by the
president wit the consent of the Senate. Due to Cabinet independence, some presidents
have relied more on an “inner cabinet,” the National Security Council (NSC). Established by
law in 1947, this is the presidential foreign advisory council composed of the president; the
vice president; the secretaries of state, defense, and the treasury; the attorney general; and
other officials invited by the president. Presidents have preferred the White House staff
over the Cabinet as a means of managing the executive branch.
B. The White House Staff. These are the analysts and advisers to the president. They are often
given the title of special assistants. A kitchen cabinet is sometimes formed by members of
the staff. They are an informal group of advisers to whom the president turns for counsel
and guidance.
C. The Executive Office of the President. Created in 1939, the EOP is defined as the
permanent agencies that perform defined management tasks for the president. The EOP
includes the Office of Management and Budget (OMB), the Council of Economic Advisers
(CEA), the NSC and other agencies. Some 1,500 to 2,000 specialized individuals work for
EOP agencies. The OMB’s roles are prepare the national budget, design the president’s
programs, report on agency activities, and oversee regulatory proposals. The CEA analyzes
the economy and economic trends to give the president the ability to anticipate events
rather than waiting and reacting. The NSC gives the president advice on national security.
D. The Vice Presidency. The vice president exists for two reasons: to succeed the president in
case of death, resignation, or incapacitation and to preside over the Senate, casting the tie
breaking vote when necessary. The vice president serves as the President of the Senate.
The vice presidency has electoral value for the president; to be chosen as a running mate, he
or she must bring support of at least once state unlikely to support the ticket. In the past 25
years, presidents have used vice presidents as a management resource after the election.
E. The First Spouse. Most presidential spouses participate in presidential ceremonial activities.
They greet foreign dignitaries, visit other countries, and attend important ceremonies. In
recent times, first ladies have begun to exert more influence over the president’s
administration and policies.
F. The President and Policy. Only members of Congress can introduce legislation. Still, many
bills enacted by Congress are crafted by the president and his staff. Congress expects the
president to propose the government’s budget, and the nation expects presidential
initiatives to deal with major problems. This gives the president a popular mandate (a claim
by a victorious candidate that the electorate has given him or her special authority to carry
out promises made during the campaign.)
4. The Contemporary Bases of Presidential Power. At one time there was debate about whether
presidents were weak or strong. Today, every president is strong. This is a reflection of the
increasing power of the presidency. Presidents seek to dominate the policy making process and
to lead the nation in time of war. This expansion of presidential power is the result of an
ongoing effort by presidents to enlarge the powers of the office. Some have succeeded,
whereas others have failed. Generally, presidents can expand their power in three ways: party,
popular mobilization, and administration.
A. Party as a Source of Power. In this instance, presidents construct or strengthen national
partisan institutions to exert influence in the legislative process and to implement their
programs. Although the party is valuable to the president, it has not always been fully
reliable due to its autonomy. Therefore, presidents use the other two methods more.
B. Going Public. In this case, presidents use popular appeals to create a mass base of support
that will allow them to subordinate their political foes. Every president since FDR has
sought to craft a public relations strategy emphasizing the incumbent’s strengths and
maximizing his popular appeal.
Limits of Going Public. Some presidents have used popular appeals to overcome
congressional opposition. However, popular support is not a firm foundation for
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presidential power, because popular support can be fickle. Presidents generate popular
support with program and policy promises for the well being of Americans. Almost
inevitably, presidential performance falls short of promises and expectations, leading to a
sharp decline in public support and ensuring that presidential influence collapses. This
explains the decrease in the use of “going public,” specifically prime time television
presidential appearances, and the use of institutionalized public and media relations
instead.
The Administrative State. Third, presidents seek to bolster their control of established
executive agencies to create new administrative institutions and procedures that will reduce
their dependence on Congress and give them a more independent governing and policy
making capability. Contemporary presidents have increased the administrative capabilities
of their office in three ways:
1. They enhanced the reach and power of the EOP.
2. They increased White House control and regulatory review over the federal
bureaucracy.
3. They expanded the role of executive orders and other instruments of direct unilateral
presidential governance.
These three components are called the White House administrative strategy, which gives
presidents the capacity to achieve their programs and policies even when Congress
disapproves.
The Executive Office of the President. The Executive Office of the President has
experienced sizable growth since the days of FDR. The enormous growth has given the
president considerable capacity to gather information, plan programs and strategies,
communicate with constituencies, and exercise supervision over the executive branch. In
particular, the OMB wields considerable presidential influence over the flow of money
appropriated by Congress.
Regulatory Review. Presidents issue directives to administrative agencies after Congress
passes a law. These directives have increasingly provided presidents with an opportunity to
expand their power over legislative implementation.
Governing by Decree: Executive Orders. Executive Orders are constitutional instruments of
the president that have allowed them to do things such as desegregate the armed forces.
Despite challenges to this use of presidential power, the courts have given presidents wide
latitude in their use of executive orders, particularly as it relates to military policy.
Signing Statements. Signing statements were put into increased use beginning with the
Reagan administration, and are typically understood to be a statement issued when a
president signs a bill into law that lays out the president’s interpretation of the law. Often
this includes some discussion of sections of the law they deem improper or even
unconstitutional and thus are apt not to implement.