THE EXECUTIVE BRANCH
PART II
PRESIDENTIAL POWER
 As the country grew and industrialized, especially in times of
emergency, people demanded that the Federal Government play a
larger role and looked to the President for leadership. Congress has
delegated much authority to the President, mostly in foreign affairs.
 Rule of Propinquity: the rule that states that power is wielded by
people who are in the room when the decision is made.
“HONEYMOON”
 Because a President’s popularity is at its peak right after the election,
the “first hundred days” have come to be called the “honeymoon”
period. This allows a President to get used to the job and to set the
agenda.
 FDR started this trend and was successful in obtaining a vast array of
new laws. This period has declined in recent years.
EXECUTING THE LAW
 The President is responsible for carrying out the
nation’s laws.
 The President must carry out laws with which he
or she disagrees, but has discretion to interpret the
laws and deciding how vigorous to enforce them.
 Most of the powers exercised by the President is
derived from past precedents as well as
congressional authorizations.
ORDINANCE POWER
 The President has the authority to issue executive orders, which have
the force of law (like the infamous 9066).
 Though not specifically stated in the Constitution, the language cited is
“take Care that the Laws be faithfully executed” in Article II, Section
3.
 Executive orders are necessary to the functioning of the executive
branch.
APPOINTMENT POWER
 The President may appoint a handful of officials on his or her
authority.
 Most of the important officers appointed, including ambassadors,
judges, and cabinet members, must be approved by the Senate.
 Well over half of the officials in the federal work force are selected
through civil service exams, and thus are not under the direct control of
the President.
DIPLOMATIC AND
MILITARY POWERS
 Usually acting through the Secretary of State, the
President may negotiate treaties, or international
agreements.
 The Senate must approve treaties by a two-thirds
vote before they become law.
 A small minority in the Senate has sometimes
been sufficient to block approval of a treaty.
 The President has been afforded more latitude in
foreign relations by the Congress. They recognize
that the President is the head of state and
Commander-in-Chief.
EXECUTIVE AGREEMENTS
 Today, most routine international agreements are
made by executive agreement, i.e., pacts between
the President and the leaders of foreign countries,
or their designees.
 Executive agreements do not require Senate
ratification. Recent examples include the trade
agreements NAFTA and GATT.
 The Case Act requires the Secretary of State to
report executive agreements to the Congress. This
prevents “secret” agreements.
EXECUTIVE PRIVILEGE



Historically, Presidents have acted
as if they have the privilege of
confidentiality, even though the
Constitution says nothing about it.
For almost 200 years there was no
challenge to this claim, but in 1973
the Supreme Court met the issue
directly. A federal special
prosecutor sought tape recordings
of the President and his advisers in
the Watergate Scandal.
In United States v. Nixon, the court
held that there is no “absolute
unqualified Presidential privilege
of immunity from judicial process
under all circumstances.”
POWER of RECOGNITION
 Presidents have the power to recognize, or
acknowledge the legal existence of a
country and establish formal diplomatic
relations with foreign states.
 Diplomatic recognition is a powerful
weapon because recognition, or lack of it,
often determines the future of a new foreign
government.
THE PRESIDENT’S DOMINANCE
IN MILITARY AFFAIRS
 The President shares the war
powers with Congress but has
almost no limits on his or her
role as commander-in-chief.
 Presidents usually delegate
much of their command
authority to military
subordinates (like the Chairman
of the Joint Chiefs of Staff,
Navy Admiral Mike Mullen),
while retaining final authority
in military matters.
 There have been
numerous undeclared
wars in the country’s
history, including the
Korean and Vietnam
Wars and “Desert
Storm” (remember,
only Congress can
declare war).
 In wartime, the President’s
powers as commander-inchief have often been
expanded to include nonmilitary matters.
 The President may use
armed forces, including
State militias, to keep the
peace in times of domestic
upheaval.
DUE TO REACTION TO THE
VIETNAM WAR…
WAR POWERS RESOLUTION
of 1973
 Congress passes this 1973 Joint Resolution that requires
the President to inform Congress of any commitment of
American troops abroad within 48 hours. In doing so,
Congress overrode a presidential veto with over a 2/3rds
vote in both houses.
 It required the President to gain congressional approval if
the commitment lasts longer than 60 days, though a
withdrawal can take a further 30 days.
 The constitutionality of the War Powers Resolution has
been and remains in dispute.
LEGISLATIVE POWERS
 The President gives a State of
the Union address and suggests
annual budgets.
 The President also recommends
specific legislation to Congress.
 The President has the power to
veto legislation, but not by line
item.
 The President may call special
sessions of Congress.
 The President may also adjourn
Congress if the two houses
cannot agree on a date for
adjournment.
JUDICIAL POWERS
 The President may grant
reprieves or pardons in
cases involving federal
law.
 The President may
commute, or reduce,
sentences or fines imposed
by a federal court.
 The President may grant
amnesty, or general
pardon, to persons who
have violated federal law.
EXECUTIVE OFFICE of the
PRESIDENT (EOP)


AKA the “White House staff”
which is an umbrella agency made
up of several separate offices and
staffed by the President’s closest
advisors and assistants. The White
House Office was created in 1939
during FDR’s presidency.
It includes the Chief of Staff, who
manages the White House staff,
Rahm Emmanuel, the counsel to
the President, the Press Secretary,
Robert Gibbs, and expert advisers
in many areas.
STAFF ORGANIZATION
 Three ways a president can organize the staff are through
the pyramid, circular, or ad hoc methods.
 In a pyramid structure (used by Eisenhower, Nixon,
Reagan, Bush, and eventually Clinton) most assistants
report through a hierarchy to a chief of staff.
 In a circular structure (Carter) cabinet secretaries and
assistants report directly to the President.
 In an ad hoc structure (Clinton early on) task forces,
committees, and informal groups of friends and advisers
deal directly with the President.
 Some Presidents (FDR) use a mixture of all three.
INS v. CHADRA
 Legally, the President can reorganize the personal White
House staff at anytime. However, if the larger Executive
Office of the President or any of the executive departments
or agencies are changed, then Congress must be consulted.
If 60 days pass without the House or Senate approving a
concurrent resolution, then a reorganization could occur
(Reorganization Act of 1939).
 If there was a resolution, it would block the presidential
action. This was called a legislative veto.
 The authority from the act expired in 1981 and Congress
did not renew it. Two years later the Supreme Court held
in INS v. Chadra that all legislative vetoes were
unconstitutional.
NATIONAL SECURITY
COUNCIL
 The NSC (1947) advises the President on matters of national security,
foreign and domestic.
 Its members include the Vice President, the secretaries of state and
defense, the CIA Director, the chairpersons of the Joint Chiefs of Staff,
members of the State Department, and, of course, the National Security
Advisor (Marine General James L. Jones, ret.).
 The NSC got into a little
hot water back in the 80’s
in the Iran-Contra affair,
creating a shadow
government, some charge.
 Poindexter and North
were members of the NSC
at the time and illegally
sold weapons to Iran and
gave the money to the
Contras in Nicaragua.
OMB
 The Office of Management and
Budget (1970) is a powerful
agency, and the largest, whose
major task is to help the
President coordinate legislative
and budgetary proposals from
the executive branch.
 It also monitors the spending of
funds appropriated by Congress
and oversees the management
of the executive branch.
 The director is Peter Orszag.
IMPOUNDMENT



Impoundment is a refusal by a President to spend money that has been
appropriated by Congress, a challenge to mandatory spending.
All of the Presidents up to Nixon were able to use this inherent power.
Nixon overused this power, so Congress passed the Congressional Budget and
Impoundment Control Act of 1974, which forbids impoundment. It requires
the president to spend all appropriated funds unless he firsts tells Congress
what funds he wishes not to spend, and Congress, within 45 days, agrees to
delete the items.
COUNCIL of ECONOMIC
ADVISORS
 The Council (CEA) consists of three top
economists, appointed by the President and
approved by the Senate. Once appointed, they
cannot be removed by the President at will.
 It is the President’s chief source of information
and advice on the economy. It was created by the
Employment Act of 1946.
THE CABINET
 The President appoints cabinet members,
who must be confirmed by the Senate.
 Many factors, both political and substantive,
influence the selection of cabinet officials.
 Until Bill Clinton, very few women and
members of minority groups had been
cabinet members. Bush and Obama have
continued this trend.
CABINET FLAWS
 Often cabinet secretaries compete for the
President’s “ear” and conflicts result.
 Sometimes they are “too specialized” in their
fields and lose sight of the big picture, focusing
upon their respective departments.
 Government is too large and bureaucratic for
cabinets to be always efficient.
 Since FDR, Presidents have come to rely on the
Executive Office and NSC for policy advice.
EXPERT VIEWS
 Richard Neustadt’s Presidential Power
(1960) asserts that the President is actually
weak in the government, unable to effect
change without congressional approval.
 The President must rely on a combination of
personal persuasion, reputation, and
prestige in order to get things done.
 Arthur Schlesinger in his The Imperial Presidency (1973)
argued the opposite by saying that the presidency had
grown much too powerful, especially in foreign affairs due
to the Cold War.
 He felt that the legislature should be more assertive, and
constrain the President’s war and treaty powers.
 Also, the growth of the Executive Office where White
House staffers serve out of personal loyalty is not
conducive to a republican form of government.
UNITARY EXECUTIVE
THEORY
 In which the President asserts broad authority to
use independent judgment to interpret and apply
law.
 This has been linked to the use of signing
statements, a written pronouncement upon the
President signing a bill into law.
 Controversy surrounded Bush when he used this
tactic over 750 times, far more than any other
previous president, and for the apparent attempt to
nullify legal restrictions on his actions.
 The signing statement that
accompanied the McCain
Detainee Amendment proved
controversial.
 “The Executive Branch shall
construe (the torture ban) in a
manner consistent with the
constitutional authority of the
President to supervise the
unitary Executive Branch and
as Commander in Chief and
consistent with the
constitutional limitations on the
judicial power.”
FINAL THOUGHTS
 Presidents are often “outsiders”. As well as, “Crisis Managers”.
They are persuaders and can sometimes circumvent formal procedures.
 Presidents choose Cabinet members from outside Congress.
 Presidents have no guaranteed majority in Congress--gridlock? Party
polarization?
 Presidents make formal speeches that take advantage of the prestige of
the office to guide the American people. This is known as the “bully
pulpit”, made first famous by Teddy Roosevelt.
 “In-and-outers” are federal appointees who shuffle between jobs in
government and the private sector (universities, law firms).
 Lame Ducks are still in office after he or she has lost a bid for
reelection.