Major Questions:
1.How has Presidential Power grown and
why?
2. What limits are there on Presidential
Power?
3.What are the sources of Presidential
Power?
Section 2
Executive Powers
The nature of the presidency depends on how
each President views the office and exercises
its powers.
Three Presidential theories
•
Stewardship
•
Narrow, or Literal
•
Prerogative, which is similar to Stewardship
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"The stewardship theory of presidential power
calls for a strong, assertive presidential role
that in the words of Theodore Roosevelt
directs the president "to do anything that the
needs of the Nation demanded unless such
action was forbidden by the Constitution or
by the laws."
If it is not forbidden, it is okay to do it.
The true view of the Executive functions is, as I conceive it,
that the President can exercise no power which cannot be
fairly and reasonably traced to some specific grant of power
or justly implied and included within such express grant as
proper and necessary to its exercise. Such specific grant
must be either in the Federal Constitution or in an act of
Congress passed in pursuance thereof. There is no
undefined residuum of power…. The grants of Executive
power are necessarily in general terms in order not to
embarrass the Executive within the field of action plainly
marked for him, but his jurisdiction must be justified and
vindicated by affirmative constitutional or statutory
provision, or it does not exist. [Source: Our Chief Magistrate
and His Powers (NY: Columbia University Press, 1916).]
I have never understood that the presidency conferred upon me an
unrestricted right to act…. I did understand, however, that my oath
to preserve the Constitution to the best of my ability imposed
upon me the duty of preserving, by every indispensable means,
that government—that nation, of which the Constitution was the
organic law. Was it possible to lose the nation and yet preserve the
Constitution?… I felt that measures otherwise unconstitutional
might become lawful by becoming indispensable to the
preservation of the Constitution through the preservation of the
nation. Right or wrong, I assume this ground, and now avow it. I
could not feel that, to the best of my ability, I had even tried to
preserve the Constitution if… I should permit the wreck of the
government, country and Constitution altogether…. I claim not to
have controlled events, but confess plainly that events have
controlled me. [Source: letter from Lincoln to A. G. Hodges, 4 April
1864.]
3 Parts:
Executive Orders
Signing Statements
Proclamations
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Use: To execute the law and to respond to
emergencies
Definition:
A presidential policy directive that
implements or interprets a federal statute, a
constitutional provision, or a treaty.
Does not need the approval of Congress
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Definition:
A signing statement is a written pronouncement issued by the
President of the United States upon the signing or veto of a
bill.
Use:
3 types:
Constitutional: asserts that the law is constitutionally
defective in order to guide executive agencies in limiting its
implementation;
Political: defines vague terms in the law to guide executive
agencies in its implementation as written;
Rhetorical: uses the signing of the bill to mobilize political
constituencies.
In recent usage, the phrase "signing statement" has referred
mostly to statements relating to constitutional matters that
direct executive agencies to apply the law according to the
president's interpretation of the Constitution.
Definition:
the president's official announcement that the
president is taking a particular action.
May have the force of law.
Executive orders are generally directed at
people inside government, Proclamations are
announcements to the world.
 May be Ceremonial or Substantive
Substantive:
 George Washington- Declaration of Neutrality
1793
 Abraham Lincoln-Emancipation Proclamation
1863
Ceremonial:
 Barack Obama- 100th Anniversary of the
Birth of Rosa Parks February 1, 2013
With Senate consent, the President names most
of the top-ranking officers of the Federal
Government, including:
 (1) ambassadors and other diplomats;
 (2) Cabinet members and their top aides;
 (3) the heads of such independent agencies
as the EPA and NASA;
 (4) all federal judges, attorneys, and U.S.
marshals;
 (5) all officers in the armed forces.
John Kerry, Secretary of
State
Chuck Hagel, Secretary of Defense
(pending Senate Approval)
Recess Appointments
• Originally for vacancies that occurred during a
recess….Presidential Precedent/Practice - any
vacancy.
• Appointee may serve only until the end of the
current session of congress…must then be
confirmed by new congress.
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During the Bush and Obama Presidencies, the
Senate has attempted to block many recess
appointments, leading to many offices going
unfilled.
In addition, a ruling that called into question
nearly two centuries of presidential “recess”
appointments that bypass the Senate
confirmation process, a federal appeals court
ruled on Friday that President Obama violated the
Constitution when he installed three officials on
the National Labor Relations Board a year ago.
http://www.nytimes.com/2013/01/26/business/
court-rejects-recess-appointments-to-laborboard.html
The Historical Debate
• Debate ensued in the First Congress as to
whether the President could remove appointees
without the consent of the Senate.
• The view that the President may remove the
officials he appoints without Senate consent has
prevailed over time.
• In general, the President may remove any
appointees except federal judges.
1926 - Myers v. United States:
President may remove most federal officials as
part of his appointment powers The power to appoint is the power to remove.
1935- Humphrey’s Executor v. United States
 Refines Myers decision: Some Federal officials
can only be removed for good cause. These
officials belong to certain independent
agencies and need some immunity to do their
jobs.
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What is Executive Privilege?
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What is the rationale behind it?
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Should it be allowed?
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The privilege, claimed by the president for
the executive branch of the US government,
of withholding information in the public
interest.
This presidential power is controversial
because it is nowhere mentioned in the U.S.
Constitution.
Pro:
Presidents and their staffs have secrecy needs
These decision makers must be able to
deliberate in private without fear that every
utterance may be made public.
Con:
Do Presidents have the right to withhold
documents and testimony in the face of
congressional investigations or judicial
proceedings?
All presidents going back to George
Washington have exercised some form of what
we today call executive privilege. The first use
of this authority occurred in 1792, when
Congress demanded from the Washington
administration information regarding the
failure of a U.S. military expedition.
Washington and his Cabinet stated that they
had the ability to withhold information if they
felt it was in the public interest.
United States v. Nixon (1974)
Nixon claimed executive privilege to prevent
release of White House tapes that contained
incriminating evidence of his participation in a
cover-up of illegal activity by administration
officials.
Nixon claimed that concealing the tapes was
required to protect the national security.
The Supreme Court ruled against the president.
Nixon was trying to protect himself from
incriminating information rather than promoting
the public interest.
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What kind of crimes may be pardoned by the
President?
What are two examples of notable
Presidential Pardons?
How often does a President issue a Pardon?
The president is given the power under the Constitution to "grant reprieves and
pardons for offenses against the United States, except in cases of impeachment."
Two types:
 full pardon to a person accused or convicted of a federal crime, releasing the
person from any punishment and restoring her or his Civil Rights.
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conditional pardons that forgive the convicted person in part, reduce a penalty a
specified number of years, or alter a penalty with conditions.
Exceptions:
Usually a private transaction between the president and an individual. In 1977
President Jimmy carter granted an Amnesty that was, in effect, a blanket pardon
to those who were either deserters or draft evaders during the Vietnam War.
(Jimmy Carter, Proclamation 4483, 1977)
Controversy:
President Nixon was granted a full and unconditional pardon for any crimes he
might have committed against the United States while President. (Gerald Ford,
Proclamation 4311, September, 1974)
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President Obama has pardoned only 22
people, fewer than any president since the
modern era of pardons began in 1900. He
has granted a pardon for 1 out of every 50
applicants, compared with 1 out of 33 for
George W. Bush, 1 of 8 for Bill Clinton and 1
of 3 for Ronald Reagan.
Source: US Department of Justice
Section 3
Diplomatic and Military Powers