Powers of the President

10 Key excerpts on "Powers of the President"

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  The Presidency and the Constitution

  Cases and Controversies

  • M. Genovese, R. Spitzer(Authors)
  • 2005(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  The Constitution, as it relates to the power of the president, raises more questions than it answers. INTRODUCTION 7 The skeletal provisions of Article II have left the words open to definition and redefinition by courts and presidents. This skeletal wording leaves it up to an aggressive chief executive and a willing Supreme Court to shape the actual parameters of such powers. The loose construction of the words of the Constitution, such as “the executive power shall be vested in a president . . . take care that the laws be faithfully executed . . . ,” has been used to view the Powers of the President in expansive or elastic terms. In effect, history has rewritten the Constitution. For two centuries, we have been debating just what the words of the Constitution mean, and this debate is by no means over. The words are “flexible” enough to mean different things in different situa- tions. Thus, one can see the elasticity of options open for both the Supreme Court and the presi- dent. On the whole, though, a more “expansive” view of presidential power has taken precedence over a more “restrictive” view. The history of the meaning of presidential power through the Constitution has been one of the expansion of power and the enlargement of the meaning of the words of the Constitution. The Constitution gives us an outline of the Powers of the President, but not a picture. The president is much more than the Constitution leads us to believe. As political scientists David E. Haight and Larry D. Johnston write: “the Presidency is above all an inte- grated institution, all of whose parts interlock with one another. Any description that discusses these parts individually cannot help being partially mislead- ing.” 12 Thus, one cannot simply look at the Constitution and define and describe “presidential power.” The presidency is more than the sum of its constitutional parts. Presidential power exists in two forms: formal and informal.

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  Lincoln's Constitution

  • Daniel A. Farber(Author)
  • 2011(Publication Date)
  • University of Chicago Press

    (Publisher)

  23 As we have seen, the text and history of Article II fail to offer decisive guidance regarding presidential power (even for those inclined to take it). The result has been a long debate through the course of our history about presidential authority during a crisis. At one extreme, Woodrow Wilson wrote (as a professor, not as president) that the Framers “seem to have thought of the President as what the stricter Whig theorists wished the king to be: only the legal executive, the presiding and guiding authority in the application of law and the execution of policy.” At the other ex-treme, Richard Nixon claimed that the president had unlimited power to take actions on grounds of national security or a “threat to internal peace and order of significant magnitude.” Although perhaps an unfortunate spokesman for this view, he did not speak merely for himself. In survey-ing these debates, scholars have distinguished five main arguments for Presidential Power { 127 inherent executive authority. Each has both appealing features and signifi-cant shortcomings. 24 The first argument for extensive crisis authority posits the existence of extraconstitutional powers, vested in the president not by the Constitution but by the very nature of his position as chief executive of a nation. If there are essential powers that go with nationhood and cannot be effec-tively exercised by other organs of government, then the mere act of cre-ating a nation might be thought to convey these powers, without the need for any specific constitutional language. Locke is often cited as support for this doctrine because he argued that the executive had inherent power to take steps to preserve society. This approach seems to be in tension with the whole idea of a written Constitution, at least as applied to domestic matters rather than foreign policy. It also begs the question of just what specific executive prerogatives are inherent in the nature of things.

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  American Government

  Institutions and Policies, Brief Version

  • James Wilson, John Dilulio, Meena Bose, Matthew Levendusky(Authors)
  • 2017(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  The Fram -ers of the Constitution designed the executive office with limited powers; but over time, the presidency has evolved to assume increasing political responsibilities and face height -ened public expectations, even as the institution’s constitu -tional powers have remained largely the same. Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-300 10-2 The Powers of the President 201 as commander-in-chief is important, but construed literally, most of the other constitutional grants seem to provide for little more than a president who is chief clerk of the coun -try. A hundred years after the Founding, that is how mat -ters appeared to even the most astute observers. In 1884, Woodrow Wilson wrote a book about American politics titled Congressional Government , in which he described the busi -ness of the president as “usually not much above routine,” mostly “ mere administration.” The president might as well be an officer of the civil service. To succeed, he need only obey Congress and stay alive. 6 But even as Wilson wrote, he was overlooking some examples of enormously powerful presidents, such as Abra -ham Lincoln; and he was not sufficiently attentive to the poten -tial for presidential power found in the more ambiguous clauses of the Constitution, as well as in the political realities of Ameri -can life. The president’s authority as commander-in-chief has grown—especially, but not only, in wartime—to encompass not simply the direction of the military forces, but also the manage -ment of the economy and the direction of foreign affairs as well. A quietly dramatic reminder of the president’s military powers— and the magnitude of their implications—occurs at the precise instant that a new president assumes office. A military officer carrying a locked briefcase moves from the side of the outgoing president to the side of the new one.

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  Triumphs and Tragedies of the Modern Presidency

  Case Studies in Presidential Leadership

  • Maxmillian Angerholzer III, James Kitfield, Norman Ornstein, Stephen Skowronek, Maxmillian Angerholzer III, James Kitfield, Norman Ornstein, Stephen Skowronek(Authors)
  • 2016(Publication Date)
  • Praeger

    (Publisher)

  The Constitution assigned “the judicial power” to a Supreme Court, for instance, but Congress has a power of subpoena, it can hold witnesses at hearings in contempt, and it conducts impeachments as a trial. The president has a power to issue reprieves and pardons for of- fenses against the United States, and can issue executive orders, executive agreements, military orders and proclamations, departmental memoranda and Office of Management and Budget directives as a substitute for actual laws (although what weight they are given is ultimately determined by the judiciary). Partial separation has allowed presidents to legitimize claims of concurrent powers, and to counterclaims that they are confined to exercising solely ex- ecutive powers and statutes. They use concurrent powers to circumvent Congress and the Courts, on the basis of their commander-in-chief powers, their claims of inherent and implied executive powers, and their oath of office. When taken to its extreme, the result is not merely a “unitary execu- tive” in which all executive powers are exercised by the president and his subordinates, but rather creation of a “state within the state,” in which the executive also exercises legislative and judicial powers sufficient to control policy without the possibility of effective checks and balances—a system of parallel governance. Presidents can also exercise prerogative power to subvert the intent of Congress through signing statements, as George W.

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  Presidential Constitutionalism in Perilous Times

  • Scott M. Matheson Jr., Scott M. Matheson(Authors)
  • 2009(Publication Date)
  • Harvard University Press

    (Publisher)

  To him, the Constitution “confer[s] upon the President broad constitutional authority to protect the Nation’s security in the manner he deems fit.” 95 Our law and history support at least some implied authority for the Pres-ident to address genuine emergencies. As Commander in Chief, the Presi-dent can and is expected to repel sudden attacks. 96 Madison wrote in The Federalist No. 41 that “It is in vain to oppose constitutional barriers to the impulse of self-preservation.” 97 A limited ability to act without prior con-gressional approval may be unavoidable given the impossibility of antici-pating the most effective measures to meet unforeseen threats. The expansion of presidential power is closely related to the most signifi-cant structural evolution in American government during the twentieth cen-tury: the rise of the administrative state. This development fundamentally altered the original constitutional framework in ways the eighteenth-century constitution makers did not anticipate. 98 Legislative delegation of powers and appropriation of funds to the executive branch to administer programs and perform regulatory roles has endowed agencies with legislative, executive, and Presidential Power and Constitutionalism 19 judicial functions. 99 Congress shifts rulemaking to the executive on a regular basis and on a significant scale. The delegation of broad authority to agencies, including rulemaking power, has undermined the ability of legislatures and courts to control executive discretion. 100 This general development compli-cates the problem of the President implementing security measures with only general or ambiguous legislative authorization or without legislative authori-zation at all. Political Branch Partnership Although the constitutional text describes powers that support presidential measures to address national security emergencies, the text also envisions a significant role for Congress.

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  Essentials Of American Politics

  • David Mckay(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  There are three possible answers to this question, which will constitute the major part of discussion in this chapter. First, it could be that public expectations of the office have increased in recent years just as the ability of presidents to satisfy these expectations has declined. Second, the process whereby presidents are recruited may have changed in ways that preselect inappropriate presidential candidates. Third, it could be that, independently of the selection process, different—and inappropriate—personality types have occupied the office in recent years. These claims require further examination, but first it is necessary briefly to outline the formal and informal sources of presidential power and to trace the growth of the modern presidency.

  Formal Sources of Power

  To an outside observer, one of the most remarkable features of the American political system is the concentration of governmental functions in one institution, the presidency. The Constitution is partly responsible for this, for it assigns to the presidency the roles of chief executive (Article 2, Section 1), commander-in-chief of the armed forces (Article 2, Section 2), chief diplomat (or the power to make treaties, Article 2, Section 2), chief recruiting officer to the executive and courts (Article 2, Section 2), and legislator (by making recommendations to Congress, Article 2, Section 3, and by exercising the veto power under Article 1, Section 7). As was emphasized in Chapter 3 , the framers did not expect the president also to become chief legislator, but over the past century, he has assumed this crucial function. Finally, the president is head of state, so must carry out all those diplomatic and ceremonial duties normally performed by constitutional monarchs (in Britain, the Netherlands) or presidents (in Israel, India, and Italy).

  Given this panoply of powers, it is understandable to think of periods in American history in terms of incumbent presidents. The first years of the republic are inseparable from the personality and influence of George Washington. Andrew Jackson’s presidencies are closely associated with the democratization of American politics and the rise of a modern two-party system. Abraham Lincoln’s personal conduct of the Civil War effectively shaped a whole era in American history, while Woodrow Wilson was the first president to elevate the United States onto the world diplomatic and military stage. Since the New Deal period—itself synonymous with the personage of Franklin D. Roosevelt—every president has made a lasting imprint on American and world politics.

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  Presidential Power

  Forging the Presidency for the Twenty-First Century

  • Robert Y. Shapiro, Martha Joynt Kumar, Lawrence R. Jacobs, Robert Shapiro, Martha Joynt Kumar, Lawrence Jacobs(Authors)
  • 2000(Publication Date)
  • Columbia University Press

    (Publisher)

  Of the thirty-three indi-viduals who have filled the office [as of  ] not more than one in three has contributed to the development of its powers . . . But the accumulated tradition of the office is also of vast importance. Precedents established by a forceful or politically successful personality in the office are available to less gifted succes-sors and permanently so because of the difficulty with which the Constitution is amended.”  Another leading scholar of the day, Clinton Rossiter, spoke of the multiple roles of presidents including chief of state, chief legislator, chief diplomat, chief executive, and commander in chief, most of which were derived from the enu-meration of executive powers found in Article II of the Constitution. In addi-tion, both Corwin and Rossiter wrote about the institution of the presidency. Rossiter observed that “The most notable development in the presidency in recent years is a change in the structure rather than a growth in power, although the latter is certainly the first cause of the change.”  To be sure, the constitutional school did recognize the importance of individual presidents                         and their decisions: Corwin wrote that “what the presidency is at any particu-lar moment depends in important measure on who is president”  But their pri-mary emphasis and interest was not about the person but the Constitution. The first several pages of Presidential Power sharply distinguished Neustadt’s work from that of the earlier scholars: “My theme is personal power and its politics: what it is, how to get it, how to keep it, how to use it . . . . The search for personal influence is at the center of the job of being president” and “Presidential’ means nothing but the president.

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  The Supreme Court and American Democracy

  Case Studies on Judicial Review and Public Policy

  • Earl Pollock(Author)
  • 2008(Publication Date)
  • Greenwood

    (Publisher)

  14 Executive Powers The Rise of the ‘‘Imperial Presidency’’ Article II of the Constitution (§1) begins: “The executive Power shall be vested in a President of the United States of America.” Article II (§2) then enumerates specific Powers of the President (pages 8–9). But are these specifically enumerated powers the President’s only powers? Or does the President have, in addition, certain “inherent powers” by the very nature of the office? As the Youngstown and Hamdi cases illustrate, many Presidents have asserted such inherent powers or—much the same—have simply chosen to act without regard to the limitations of Article II. The result has been to substantially enlarge the de facto powers of the Executive. Although Thomas Jefferson was known as a strict constructionist, his experience as President markedly changed his views. He wrote that “On great occasions, every good officer must be ready to risk himself in going beyond the strict line of the law, when the public preservation requires it; his motives will be a justification.” Similarly, he declared that The laws of necessity, of self-preservation, of saving our country when in danger, are of a higher obligation. . . . To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. In the agreement Jefferson made with France to buy the Louisiana territory (consist- ing of nearly one million square miles, and doubling the size of the United States, for only about four cents per acre), he promised that the territory would eventually become States of the Union and that the inhabitants would have the rights of American citizens. The Constitution said nothing about acquiring territory or promising statehood or citi- zenship, or about the President’s having such authority.

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  FDR and the Modern Presidency

  Leadership and Legacy

  • William D. Pederson, Mark J. Rozell(Authors)
  • 1997(Publication Date)
  • Praeger

    (Publisher)

  25 142 Leadership and Presidential Powers Federalist 23 supports the view that constitutional powers to provide for the common defense "ought to exist without limitation." Furthermore: The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which care of it is committed [T]he means ought to be proportioned to the end, the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. 26 Even the ultradefender of individual liberty, Thomas Jefferson, adopted a broad view of the executive's power to take resolute action when com- pelled by necessity. In an 1810 letter defending some of his emergency actions as president, Jefferson wrote: A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in dan- ger, are of higher obligation. To lose our country by scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. 27 The constitutional framers and Jefferson recognized that the presidency possessed the institutional capacities uniquely suited to responding to emergency situations. As scholar Paul Peterson has written: "It is the executive power that most lends itself to energy. . . . To speak of energy in the legislative or judicial branches would be something akin to an oxymo- ron." 28 The judicial branch has recognized the executive's preeminence in national security and foreign policy-making on a number of occasions. 29 The constitutional provisions generally cited in defense of presidential emergency powers are the commander-in-chief clause, the take care clause, and the vesting clause.

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  The Clinton Wars

  The Constitution, Congress, and War Powers

  • Ryan C. Hendrickson, Ryan Hendrickson(Authors)
  • 2002(Publication Date)
  • Vanderbilt University Press

    (Publisher)

  1 1 War Powers in American History Since the republic’s founding, American presidents have engaged in over three hundred different uses of force abroad. During the same time, Congress passed only five declarations of war. To the casual observer, it may seem that as commander in chief, the president is entitled to unilateral military powers and acts in a perfectly constitutional man-ner when deploying troops without congressional approval. From this logic, it follows that Congress is supposed to be a secondary player in American foreign policy and should remain at a distance when it comes to the decision to use of force abroad. Some politicians and scholars alike contend that the president should be the empowered branch of government when it comes to using the military abroad. Based on po-litical practice, especially since World War II, it is understandable how one could come to this conclusion, although such a view neglects the founding fathers’ views on checks and balances, as well as key treaties negotiated by the United States Congress that protected and reaffirmed Congress’s constitutional war powers. Advocates of Presidential War Powers One of the strongest proponents of presidential war powers was Sena-tor Barry Goldwater (R-Ariz.). Goldwater argued that when the found-ing fathers discussed war powers at the Constitutional Convention and decided to assign Congress the power to “declare” rather than “make” war, they intended that the president should be in charge of military decisions. Congress should only speak to support the president. In his view, Congress may decide to declare war or not, but the presi-dent has an independent leadership role in his constitutional war pow-ers. 1 Former senator and secretary of defense nominee John Tower (R-Tex.) likewise argued that the president should not be encumbered 2 The Clinton Wars by Congress in foreign policy making.

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