The President Has Several Options to Work Around Congress
Executive Power Flowchart
Aside from ratifying treaties or
formally declaring war, the president
has essentially unchecked authority
over most aspects of foreign policy.
Foreign
Foreign or domestic
policy?
Shape policy
What is the President seeking
to do: Shape policy, appoint
an official, or push back on
policy passed by Congress?
Do current laws or
Congressional resolutions
support the executive
branch’s ability to shape
this policy?
Domestic
The president can use an executive order
to shape policy; Congress can challenge
the order’s constitutionality in court,
however.
No
Yes
The president can propose a federal rule;
the rule-making process is lengthy, but it
allows for more executive branch input.
The president can use a recess
appointment to bypass Congress,
but only when Congress is out of
session for more than ten days.
Appoint an
official
The president can use a return veto if the
law passes, but the veto is subject to an
override vote in Congress.
Push back on
policy passed by
Congress
No
Is Congress
currently in
recess?
Yes
Has the policy
already been
signed into law?
Yes
No
Has congress been in
recess for ten days
or more?
No
Yes
The president can attempt a protective
return pocket veto; while questionably
constitutional, it can’t be overridden.
The president can use a pocket veto,
which cannot be overridden by Congress.
The president can selectively defend the
law or file an amicus brief if someone
challenges the law’s constitutionality in
court.
Sources: National Journal Research, 2014; Jess Bravin and Melanie Trottman, “Supreme Court Narrows President’s Recess-Appointment Powers,” Wall Street Journal, June 26, 2014; Louis Fisher, “The Pocket Veto: Its Current Status,” Congressional Research
Service, March 30, 2001; Robert J. Spitzer, “Growing Executive Power: The Strange Case of the ‘Protective Return’ Pocket Veto,” Presidential Studies Quarterly, July 19, 2012; Federal Register Executive Orders Disposition Tables, Federal Register, 2013; ICF
Consulting; Office of Information and Regulatory Affairs, OMB, 2013; Daniel J. Meltzer, “Executive Defense of Congressional Acts,” Duke Law Journal, February 19, 2012; Department of Justice Office of Public Affairs, February 23, 2011.