In the news & announcments
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Liberal Democrats in Congress are worried
about health care reform (that Obama will
compromise with Rs on a public plan).
Correction from lecture Thursday on
Catholics on the Supreme Court: there are
five (Kennedy, Thomas, Scalia, Alito, and
Roberts).
FBI background checks.
Nomination hearings
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New Yorker article. Hearings as theater.
Time to get rid of them? What purpose do
they serve?
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What types of questions are appropriate? Not
current cases, but general views on legal
principles? The commerce clause, government
regulation, the Voting Rights Act, etc.
How to tell if they are lying?
How could the process be improved?
Judicial Review
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Historical context: Marbury v. Madison
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Silence of the Constitution on the subject of judicial review.
Facts of the case.
The Court has struck down more than 150 acts of
Congress and about 1,400 state acts. But Congress
passed more than 60,000 laws in its first 215 years. so
only about .25% have been struck down by the Court.
Current debates about judicial review
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Judicial restraint vs. activism. Is judicial review undemocratic?
Answer to this question usually depends on one’s political views.
Was it the landmark case that the common wisdom says it is?
The contrarian case: it was only a minor case involving judicial
issues; it wasn’t cited by the SC until the late 19th century, judicial
review itself did not come up again for another fifty years.
Relations between the Supreme Court
and other branches
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The “weakest branch?” Hamilton, Federalist #78, “Neither the power
of the purse nor the sword.” Lack of enforcement power.
– Feud between John Marshall and Andrew Jackson
– U.S. v. Nixon – Watergate tapes case
– School prayer and desegregation
What can the Court do to get the other branches or the public to go
along with its decisions?
– Unanimous decisions.
– Sensitivity to public opinion
Reactions by Congress to decisions they don’t like: overturn
decisions (if statutory interpretation), calls for impeachment, cut the
pay of judges, limit jurisdiction of the courts, block nominations of
judges they disagree with.
Fisher article: Congress is an equal partner in Constitutional interp.
Relations between the Supreme Court
and other branches, cont.
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Political questions: self-imposed limitation by the Court
to stay out of political disputes. Boundary disputes, many
foreign policy issues (but not all – Guantanamo case,
Rasul v. Bush, 2004), internal congressional procedures,
and until the 1960s, redistricting.
Should the Court operate in a counter-majoritarian way
as protector of minority interests, or does it defer to the
popular will? Examples of sticking up for politically
unpopular causes: criminal defendants’ rights, school
prayer, gay rights, and flag burning. Members of
Congress are not willing to support these issues.
Congress and the Presidency
PS 426
April 21-28, 2009
Defining “executive power”?
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Is it merely an administrative duty?
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Richard Neustadt – the President as “clerk.”
Relatively undefined power. There are two
ways to understand executive power.
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Neustadt’s argument about informal power: the
power to persuade.
John Locke’s “prerogative power.” Presidential
action in the absence of a specific authorization,
even when it may violate the law in order to achieve
a higher goal – the public good.
Neustadt and presidential power
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Governing within a separated system.
What this means for presidential leadership and power?
Presidents can rarely lead through commands.
Executive orders and executive agreements.
Conditions under which commands can work are very
limiting.
Presidential power is the “power to persuade.” Logic
isn’t enough. Have to get other players to see that it is
in their own interest to do what the president wants.
“Tom Sawyer theory” of presidential leadership.
Neustadt, cont.
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Professional Reputation (standing in Washington
D.C.). Role of anticipated reactions.
Public Prestige (standing in the public). Much
more difficult to bargain with Congress when you
do not have the support of the public.
The two don’t always go together. Truman and
Reagan. Clinton: separation between personal
and professional.
Responsibility/responsiveness and reputation/
prestige.
Presidential Approval Ratings
1946-2009
100
Bush 41
90
80
LBJ
Obama
Reagan
Truman
Ford
70
60
50
40
Ike
JFK
30
20
10
Clinton
Nixon
Bush 43
Carter
0
1946 1949 1952 1954 1957 1960 1963 1965 1968 1971 1974 1976 1979 1981 1984 1987 1990 1993 1995 2000 2004 2009
Month
105
101
97
93
89
85
81
77
73
69
65
61
57
53
49
45
41
37
33
29
25
21
17
13
9
5
1
approval rate
Clinton's popularity, 1993-2001
80
70
60
50
40
30
20
10
0
Presidential Approval Rating, George W.
Bush, 2001-2008
(Source: CBS News/NY Times Poll)
Public Prestige
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Overall trends: declining support, after initial
“honeymoon” period. Eisenhower and Clinton
are the two biggest exceptions (Reagan to
some extent as well).
Bush’s poll numbers: three periods: pre-911,
9/11/01 through Iraq invasion (3/03), and the
period since then.
Obama already is experiencing some of the
drop in the polls that is typical of a first term. A
very short honeymoon!
Neustadt, cont.
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“Making right choices.”
Have to guard the long-term power stakes.
Gays in the military example in 1993 with
Clinton and the U.S. attorneys mess with Bush
– need to cut your losses.
Have to get the right information.
Have to “teach reality.” Fight against unrealistic
expectations.
Will immigration reform be Obama’s example of
a wrong strategic choice?
The range of possible outcomes
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Inaction – gridlock/deadlock
Congressional opposition (Congress dominant)
Congressional opposition (pres dominant)
Compromise – both give up something
Consensus – agree on the basic policy, work together.
flight – the President will anticipate that Congress will
not go along with the policy, so he will attempt to get
some action on the policy proposal by going outside the
legislative process. Will issue an executive order or
attempt to get bureaucratic compliance. “Going public”
is another possible angle on this.
The “two presidencies”
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Aaron Wildavsky’s argument that there is one
presidency for domestic policy and another for
foreign policy.
Stakes are higher in foreign policy. Other actors
(courts, Congress, public, interest groups) are
more willing to defer to the president in foreign
policy.
However, Congress has become more active in
FP in the past 30 years. Also, issues are
increasingly difficult to define as “foreign” or
“domestic” – “intermestic” issues.
War Powers – Founders’ Intent
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Intent of Framers is very clear
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giving power to declare war to Congress designed to take the
power away from any individual
original language said “make war,” but changed to “declare” to
give president the power to repel sudden attacks
Rejection of royal prerogative of war making
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Presidents have initiated military action hundreds of times
over history
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Constitution gives Congress the power to
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declare war
raise and support armies and navies
Founders’ views, cont.
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Other congressional war powers:
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“make rules concerning captures on land and water,”
“regulation of the land and naval forces.”
“provide for calling the Militia to execute the Laws of the Union,
suppress insurrections and repel Invasions”
Provide for organizing, arming, and disciplining the Militia.
Define and punish piracies and felonies committed on the high
seas. Should Nancy Pelosi and Harry Reid given the order to the
Navy Seals in the Somalia case rather than Obama?
Stark contrast to the president’s “commander in chief”
powers.
Questions About the War Power
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Supporters of a strong interpretation of presidential power
point to three things:
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President is commander in chief,
changing language from “make war” to “declare war,”
desire to separate the power of the purse from the power of the
sword. Wouldn’t want Congress to have both.
Is a war different from a use of military force?
Is Congress’ continued appropriation of $ an implicit
authorization?
How can Congress stop a president?
Presidential Use of Force
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Only five congressionally declared wars:
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Congressional authorization of use of force:
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War of 1812, Mexican-American War (1846), Spanish
American War (1898), WWI (1917), WWII (1941).
Vietnam (sort of, because of the Gulf of Tonkin
Resolution), Persian Gulf (1991), Afghanistan (2001),
Iraq (2003) and about 8 or 9 others.
Cases of “unauthorized” use of force
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Operation Just Cause (Panama, 1989), Korea (195053), Grenada (1983), Persian Gulf (1990, 1993, 1998,
1999), list goes on – at least 125 cases.
Early History
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The Neutrality Proclamation: In 1793, Washington
issued a proclamation proclaiming that the U.S. would
be neutral in the war between France and Britain, and
that the U.S. would not come to the aid of any citizen
who got involved
Question: if the president cannot “declare war,” can he
declare the absence of war?
Flying Fish case, Little v Barreme (1804). Early war
powers case that sided with Congress. Has never been
overturned.
Examples of prerogative power in the
context of war
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Lincoln, during Civil War:
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Roosevelt, 1942:
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suspended habeas corpus, increased the size of military without
a congressional authorization, spent money without
congressional appropriation, blockaded Southern ports (an act of
war), censored the mail.
asked Congress to revise emergency economic legislation. If
they refused, FDR said he would just act as if Congress had
given him the power he said he needed.
President Bush and the war on terror: extraordinary
rendition, torture, and domestic surveillance.
Criticism of “Prerogative” Power
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Inconsistent with concept of limited government.
Very difficult to specify rules that distinguish valid
vs. invalid cases.
Most of the time, we simply finesse the question.
However, very common during war time. Basis
for a more general understanding of presidential
war power.
President’s Role in Foreign Policy
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Clear trend: expansion of presidential foreign
policy powers, in ways not anticipated by
Framers.
War powers, again: presidents have assumed
power of committing military to combat action,
without congressional declaration of war.
Presidential justification:
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commander in chief power
president as “sole organ of foreign affairs”
congressional clumsiness and inefficiency.
Supreme Court Cases
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U.S. v. Curtiss Wright (1934)
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President, acting pursuant to legislative authority, imposed an
embargo on arms shipments to Paraguay and Uruguay
obiter dicta (reasoning that has nothing to do with the case at
hand): president has plenary powers in foreign affairs, and certain
“extra constitutional” powers
criticized as historically inaccurate and poorly reasoned, but often
cited as support for presidential initiative
Korematsu v. U.S. (1944)
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Internment of Japanese Americans upheld as valid exercise of
military discretion (authorized by Congress).
dissent held that it was an obvious violation of the 5th and 14th
amendments, since the exclusion was based on group
membership, not any specific investigations.
Reaching Too Far: Truman
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During Korean War, Truman ordered Secretary of
Commerce to take control of steel mills. Truman
claimed inherent, emergency powers:
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Q: Mr. President, if you can seize the steel mills under your
inherent powers, can you, in your opinion, also seize the
newspapers and/or the radio stations? The President: Under
similar circumstances the President of the United States has to
act for whatever is for the best of the country. That’s the answer
to your question.
Use of power struck down in Youngstown Sheet and
Tube v. Sawyer (1952). Established that there is no
unlimited emergency prerogative, even in wartime.
Reaching Too Far: George W. Bush
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Hamdi v. Rumsfeld, (2004) Supreme Court reversed the dismissal of
a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a
U.S. citizen being detained indefinitely as an "illegal enemy
combatant." The Court recognized the power of the government to
detain unlawful combatants, but ruled that detainees who are U.S.
citizens must have the ability to challenge their detention before an
impartial judge.
Rasul v. Bush, (2004), Supreme Court established that the U.S. court
system has the authority to decide whether foreign nationals (nonU.S. citizens) held in Guantanamo Bay were rightfully imprisoned.
Hamdan v. Rumsfeld, (2006), Supreme Court held that military
commissions set up by the Bush administration to try detainees at
Guantanamo Bay "violate both the UCMJ and the four Geneva
Conventions."
Congressional Response: The War
Powers Act (1973)
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Congressional reaction to Vietnam, Nixon’s “imperial
presidency,” and erosion of congressional war power
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Nixon expanded U.S. attacks into Cambodia in 1970, despite
congressional restriction that specified that the U.S. was not
committed to its defense
1971: appropriations language stating that the U.S. should end
military operations “at the earliest practicable date”
requires president to consult “in every possible instance”
before sending troops into combat.
Limits use of troops to 60 days (with a 30 day extension),
unless Congress approves the deployment.
War Powers Act, cont.
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“In the absence of a declaration of war, in any case in
which U.S. armed forces are introduced. . . The
President shall submit within 48 hours a report” detailing
the circumstances, authority, and scope of deployment.
Consensus that the law is probably unconstitutional,
although it has never been tested in court.
No court likely to intervene in this dispute.
Conclusive evidence that it has had no effect on
presidential commitment.
Congress attempting to use the power of the purse to
bring the troops home.
Sharing information, executive privilege
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Constitution is silent on question of whether president can
keep information secret from Congress and the public
Specifically allows Congress to keep its records secret,
requiring publication “excepting such parts as may in their
judgment require secrecy”
Supreme court: “in the area of basic national defense, the
frequent need for absolute secrecy is, of course, self
evident.”
However, U.S. v. Nixon (1974) put limits on the claims of
executive privilege. Current controversy over the U.S.
attorneys may help sort this out.
Evolution of Presidential Power
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While presidential power cannot be specifically
defined, we can, however, make the general
argument that presidential power has grown
since the Founding.
Reasons:
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doctrinal changes in interpreting executive power
growth in size of federal government
delegation of power by Congress
growth in presidential agenda setting and public
appeals power
presidential advantages with respect to Congress
Important recent development:
Signing Statements
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Presidential signing statements are pronouncements issued by the
president when he signs a law that, in addition to providing general
commentary, identify provisions of the legislation with which the
president has concerns and (1) provide the president's interpretation
of the language of the law, (2) announce constitutional limits on the
implementation of some of its provisions, or (3) indicate directions to
executive branch officials as to how to administer the new law in an
acceptable manner.
Practice has been common since the 1980s. Differences in
counting; Bush issued between 150 and 750 signing statements,
depending on how they are counted. Key difference is that a higher
proportion of Bush’s statements raise constitutional questions.
Constitutionality of this practice is unclear: the Court will have to
define its limits.
Frequency of signing statements
Number
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Reagan
GHW Bush
Clinton
GW Bush
276
214
391
150-750
Percent
Constitutional
26%
68%
27%
86%
Source: 2006 CRS report and Boston Globe data.
Divided Government
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Historic patterns
Causes
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Incumbency. Democrats in control when incumbency safety
increased. Also, behavior that is linked to incumbency safety is
more consistent with Democratic views of the role of
government. But doesn’t explain the Senate or recent changes
since 1994.
Purposeful explanations: Fiorina, partisan balancing and
Jacobson, party balancing. Some evidence to support this. A
less sophisticated version of this approach is the “pox on both
your houses” version: voters are disenchanted with the parties
and want them to check each other.
Divided Government, cont.
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Consequences
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Responsibility / Accountability Nobody to blame when things
go wrong. “Blame game.”
Gridlock / efficiency. Evidence is not as clear here. Binder
says you have to look at the size of the agenda, not just the
output. Other factors also important: ideological polarization,
distance between the House and Senate in ideology, and public
mood. Also, evidence for gridlock is not just major legislation
but also confirmations, control of the bureaucracy, and other
aspects of the daily political process.
Impact on the budget deficits, political careers, approval of
Congress.