INFORMAL POWERS OF THE
PRESIDENT
SPRING 2015
INFORMAL POWERS
• THOSE POWERS NOT EXPLICITLY WRITTEN IN THE CONSTITUTION . IT IS ALSO CALLED
INHERENT POWERS
• BASED ON THE “FAITHFULLY EXECUTE” CLAUSE IN THE PRESIDENTIAL OATH WHICH IS IN THE US
CONSTITUTION
• SIMILAR TO “NECESSARY AND PROPER” POWERS OF CONGRESS
• IN THE MODERN ERA (SINCE 1933), THE PRESIDENT’S INFORMAL POWERS MAY BE
SIGNIFICANTLY MORE POWERFUL THAN HIS FORMAL POWERS.
4 MAJOR INFORMAL POWERS
• PERSUASION
• EXECUTIVE ORDERS
• EXECUTIVE AGREEMENTS
• EXECUTIVE PRIVILEGE
PERSUASION
• GIVEN MORE MEDIA COVERAGE THAN OTHER GOVERNMENT OFFICIALS SO HE/SHE CAN
PERSUADE THE PUBLIC MORE EASILY. (HEAVILY INFLUENCE BY PUBLIC OPINION POLLS
THOUGH)
• WHITE HOUSE PRESS CORPS FOLLOWS HIM EVERY WHERE
PERSUASION
• FORMAL POWERS OF VETO, RECOMMENDING MEASURES TO CONGRESS, AND CALLING A SPECIAL
JOINT SESSION OF CONGRESS ALLOW FOR PERSUASION OF LEGISLATIVE BRANCH
• FOREIGN POLICY POWERS OF APPOINTING AMBASSADORS, CREATING TREATIES/EXEC
AGREEMENTS, INFLUENCE FOREIGN LEADERS AND ORGANIZATIONS (UN)
EXECUTIVE ORDERS
• ORDERS ISSUED BY THE PRESIDENT THAT CARRY THE FORCE OF LAW THAT DO
NOT NEED CONGRESSIONAL APPROVAL - PART OF “FAITHFULLY EXECUTE”
CLAUSE IN PRESIDENTIAL OATH IN THE US CONSTITUTION
• MUST BE TIED TO AN EXPRESSED POWER OF PRESIDENT OR LAW PASSED BY
CONGRESS.
• US SUPREME COURT CAN OVERRULE THESE ORDERS IF THE COURT RULES IT
VIOLATES THE US CONSTITUTION.
EXECUTIVE ORDERS
• WHY ARE THEY DONE?
• CONGRESSIONAL INACTION
• IMMEDIATE ATTENTION IS NEEDED TO AN IMPORTANT/EMERGENCY SITUATION.
• CLARIFICATION/UPDATING OF AN ALREADY EXISTING LAW OR POLICY PASSED BY CONGRESS OR
EXECUTIVE AGENCY.
• SOMETHING THE PRESIDENT WANTS DONE
RECENT EXECUTIVE ORDERS
• OBAMA’S ORDER TO REVISE IMMIGRATION
PROCEDURE. (2015)
• OBAMA’S ORDER TO INCREASE MINIMUM
WAGE FOR FEDERAL
WORKERS/CONTRACTORS.(FEB 2014)
• HTTP://WWW.WHITEHOUSE.GOV/B
RIEFING-ROOM/PRESIDENTIALACTIONS/EXECUTIVE-ORDERS
CONTROVERSIAL EXECUTIVE ORDERS
• FDR’S INTERNMENT OF JAPANESE
AMERICANS. THIS ORDER WAS
REVIEWED IN THE CASE KOREMATSU
VS. US AND THE SUPREME COURT
RULED IN FAVOR OF THE
DETENTIONS DUE TO THE FACT THE
CONGRESS APPROVED IT AND IT WAS
WARTIME.
• CLINTON’S DIRECTIVE TO INITIATE
THE MILITARY POLICY OF DON’T ASK,
DON’T TELL FOR GAY SOLDIERS. THIS
POLICY HAS SINCE BEEN CHANGED
VIA A LAW PASSED 2010.
EXECUTIVE AGREEMENTS
• INTERNATIONAL AGREEMENTS, USUALLY
RELATED TO TRADE, MADE BY A PRESIDENT
THAT HAS THE FORCE OF A TREATY; DOES
NOT NEED SENATE APPROVAL
• OFTEN ORGANIZED BY STATE DEPARTMENT
OR TRADE AGENCIES
• EXAMPLES
• JEFFERSON’S PURCHASE OF LOUISIANA IN
1803
EXECUTIVE AGREEMENTS
• SOMETIMES SEEN AS
UNCONSTITUTIONAL BECAUSE
SENATE DOES NOT HAVE TO APPROVE.
• HUGE INCREASE IN THIS OVER
ACTUAL TREATIES APPROVED BY
SENATE DURING THE 20TH CENTURY
• EXAMPLE - ARMS CONTROL ACTS
MADE BY NUMEROUS PRESIDENTS
EXECUTIVE PRIVILEGE
• CLAIM BY A PRESIDENT THAT HE/SHE HAS THE
RIGHT TO DECIDE THAT THE NATIONAL INTEREST
WILL BE BETTER SERVED IF CERTAIN
INFORMATION (SUCH AS PRIVATE
CORRESPONDENCE WITH AIDS AND DEPARTMENT
SECRETARIES) SHOULD BE WITHHELD FROM THE
PUBLIC, THE FEDERAL COURTS, AND CONGRESS.
THIS MAKES IT MORE DIFFICULT TO INVESTIGATE A
PRESIDENT.
• UNITED STATES V. NIXON (1973) – PRESIDENTS DO NOT
HAVE UNQUALIFIED EXECUTIVE PRIVILEGE (NIXON
WATERGATE TAPES)
QUESTIONS TO CONSIDER
•
WHY ARE INFORMAL POWERS MORE IMPORTANT THAN FORMAL POWERS,
PARTICULARLY TO MODERN PRESIDENTS?
•
IDENTIFY SEVERAL ADVANTAGES AND DISADVANTAGES OF THE USE OF THE
PRESIDENT’S INFORMAL POWERS.
•
HAS THE USE AND PERHAPS ABUSE OF THE INFORMAL POWERS CREATED AN
“IMPERIAL PRESIDENCY?” DEFEND YOUR ANSWER.