12.1: The Powers of the Presidency

12.1.1: Expressed Powers

Learning Objective

Discuss the expressed powers of the President in the Constitution of the United States

Key Points

• Article Two of the United States Constitution creates the executive branch of the government, consisting of the President, the Vice President, and other executive officers chosen by the President.
• Perhaps the most important of all presidential powers is command of the United States Armed Forces as commander-in-chief. While the power to declare war is constitutionally vested in Congress, the president commands and directs the military and is responsible for planning military strategy.
• Along with the armed forces, the president also directs U.S. foreign policy. Through the Department of State and the Department of Defense, the president is responsible for the protection of Americans abroad and of foreign nationals in the United States.
• The president decides whether to recognize new nations and new governments, and negotiates treaties with other nations, which become binding on the United States when approved by two-thirds vote of the Senate.
• The president also has the power to nominate federal judges, including members of the United States courts of appeals and the Supreme Court of the United States.
• The Constitution’s Ineligibility Clause prevents the President from simultaneously being a member of Congress. Therefore, the president cannot directly introduce legislative proposals for consideration in Congress.

Key Terms

senatorial courtesy

an unwritten political custom (or constitutional convention) in the United States whereby the president consults the senior U.S. Senator of his political party of a given state before nominating any person to a federal vacancy within that Senator’s state

war powers resolution

The War Powers Resolution of 1973 (50 U.S.C. 1541-1548)[1] is a federal law intended to check the President’s power to commit the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the President can send U.S. armed forces into action abroad only by authorization of Congress or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. “

twenty-third amendment

Under the Twenty-third Amendment, the District of Columbia may choose no more electors than the state with the lowest number of electoral votes. No Senators, Representatives or federal officers may become Electors.

ineligibility clause

The Constitution’s Ineligibility Clause prevents the president from simultaneously being a member of Congress. Therefore, the president cannot directly introduce legislative proposals for consideration in Congress.

Example

• While historically presidents initiated the process for going to war, critics have charged that there have been several conflicts in which presidents did not get official declarations, including Theodore Roosevelt’s military move into Panama in 1903, the Korean War, the Vietnam War, the invasions of Grenada in 1983 and Panama in 1990.

The expressed powers of the President are those expressed in the Constitution of the United States.

President and Vice President

Article Two of the United States Constitution creates the executive branch of the government, consisting of the president, the vice president, and other executive officers chosen by the president. Clause 1 states that “the executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows. ” Clause one is a “vesting clause,” similar to other clauses in Articles 1 and 3, but it vests the power to execute the instructions of Congress, which has the exclusive power to make laws.

Clause 2 states the method for choosing electors in the Electoral College. Under the U.S. Constitution the president and vice president are chosen by electors, under a constitutional grant of authority delegated to the legislatures of the states and the District of Columbia. In other words, the constitution lets the state legislatures decide how electors are created. It does not define or delimit what process a state legislature may use to create its state’s college of electors. In practice, since the 1820s, state legislatures have generally chosen to create electors through an indirect popular vote. Each state chooses as many electors as it has Representatives and Senators in Congress. Under the Twenty-third Amendment, the District of Columbia may choose no more electors than the state with the lowest number of electoral votes. Senators, Representatives, or federal officers may not become electors.

Presidential Powers

Perhaps the most important of all presidential powers is commander-in-chief of the United States Armed Forces. While the power to declare war is constitutionally vested in Congress, the president commands and directs the military and is responsible for planning military strategy. Congress, pursuant to the War Powers Resolution, must authorize any troop deployments longer than 60 days, although that process relies on triggering mechanisms that never have been employed, rendering it ineffectual. Additionally, Congress provides a check on presidential military power through its control over military spending and regulation. While historically presidents initiated the process for going to war, critics have charged that there have been several conflicts in which presidents did not get official declarations, including Theodore Roosevelt’s military move into Panama in 1903, the Korean War, the Vietnam War, and the invasions of Grenada in 1983 and Panama in 1990. The “wars” waged in Iran (2001) and Afghanistan since (2003) are officially called “military engagements” authorized by Congress. Officially, the U.S. was not at war with the governments of those nations, but fought non-government terrorist groups.

Along with the armed forces, the president also directs U.S. foreign policy . Through the Department of State and the Department of Defense, the president is responsible for the protection of Americans abroad and of foreign nationals in the United States. The president decides whether to recognize new nations and new governments, and negotiates treaties with other nations, which become binding on the United States when approved by a two-thirds vote of the Senate .

The president is the head of the executive branch of the federal government and is constitutionally obligated to “take care that the laws be faithfully executed. ” Generally, a president may remove purely executive officials at his discretion. However, Congress can curtail and constrain a president’s authority to fire commissioners of independent regulatory agencies and certain inferior executive officers by statute. To manage the growing federal bureaucracy, presidents have gradually surrounded themselves with many layers of staff who were eventually organized into the Executive Office of the President of the United States.

The president also has the power to nominate federal judges, including members of the United States courts of appeals and the Supreme Court of the United States. However, these nominations require Senate confirmation. Securing Senate approval can provide a major obstacle for presidents who wish to orient the federal judiciary toward a particular ideological stance. When nominating judges to U.S. district courts, presidents often respect the long-standing tradition of Senatorial courtesy.

The Constitution’s Ineligibility Clause prevents the president from simultaneously being a member of Congress. Therefore, the president cannot directly introduce legislative proposals for consideration in Congress. However, the president can take an indirect role in shaping legislation, especially if the president’s political party has a majority in one or both houses of Congress. For example, the president or other officials of the executive branch may draft legislation and then ask senators or representatives to introduce these drafts into Congress. The president can further influence the legislative branch through constitutionally mandated, periodic reports to Congress. These reports may be either written or oral, but today are given as the State of the Union address, which often outlines the president’s legislative proposals for the coming year.

12.1.2: Delegated Powers

Learning Objective

Compare and contrast the “strict constructionists” and “loose constructionists” schools of thought of the Constitution

Key Points

• Many presidential powers are delegated powers that Congress has accorded presidents to exercise on its behalf, and that it can cut back or rescind.
• The delegated powers are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authoritative capacity of Congress. In summary, Congress may exercise the powers that the Constitution grants it.
• Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.
• Loose constructionists provide a wider and broader reading of the Constitution and amendments passed historically.
• The Enumerated Powers Act is a proposed law that would require all bills introduced in the U.S. Congress to include a statement setting forth the specific constitutional authority under which each bill is being enacted.

Key Terms

Enumerated Powers Act

a proposed bill in the United States House of Representatives which requires legislation passed by Congress cite those provisions of the Constitution that give them the power to pass such legislation. The bill has been proposed by Congressman John Shadegg in every Congress since the 104th, and frequently draws many co-sponsors. It has never been passed. However, at the beginning of the 105th Congress, significant portions of the bill were adopted into House rule

strict constructionism

a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation (the phrase is also commonly used more loosely as a generic term for conservatism among the judiciary)

delegated powers

The delegated powers – also called enumerated powers – are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authoritative capacity of Congress.

Introduction

Almost all presidential powers rely on what Congress does or does not do. Presidential executive orders implement the law, but Congress can overrule such orders by changing the law. And many presidential powers are delegated powers that Congress has accorded presidents to exercise on its behalf and that it can cut back or rescind.

Delegated Powers

The delegated powers, also called enumerated powers, are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authoritative capacity of Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights and other protections in the Constitution. The Tenth Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ” Historically, Congress and the Supreme Court of the United States have broadly interpreted these provisions.

The list of enumerated powers includes the following: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” “To borrow Money on the credit of the United States;” “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” and “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Political Interpretation

There is a difference of opinion in the political arena on whether current interpretation of enumerated powers, as exercised by Congress, is constitutionally sound. One school of thought is called “strict constructionism.” Strict constructionists often reference a statement on the enumerated powers set forth by Chief Justice Marshall in the case McCulloch v. Maryland. Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.

Another school of thought is referred to as “loose constructionism.” Loose constructionists provide a wider and broader reading of the Constitution and amendments passed historically.

Interpretation of the Necessary and Proper Clause has been controversial, especially during the early years of the republic. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. Loose constructionists, on the other hand, interpret the Necessary and Proper Clause as expanding the authority of Congress to all areas tangentially related to one of its enumerated powers.

12.1.3: Inherent Powers

Learning Objective

Discuss the source of the inherent powers of the President

Key Points

• The President derives these powers from the loosely worded statements in the Constitution that “the executive Power shall be vested in a President” and that he should “take care that the laws be faithfully executed”; defined through practice rather than through constitutional or statutory law.
• The first three presidents, Washington, Adams, and Jefferson established their importance concerning the inherent powers in different ways.
• Supporters of the unitary executive theory argue that this means that the president’s power, particularly the inherent power that come with being commander in chief, are open ended and cannot be checked by the other two branches.

Key Terms

unitary executive theory

Supporters of the unitary executive theory argue that this means that the president’s power, particularly the inherent power that come with being commander in chief, are open-ended and cannot be checked by the other two branches.

inherent powers

Inherent powers are assumed powers of the president not specifically listed in the Constitution. Inherent powers come from the president’s role as chief executive.

unitary system

a state governed as one single unit in which the central government is supreme and any administrative divisions (subnational units) exercise only powers that their central government chooses to delegate

Inherent Powers

Inherent powers are those powers that a sovereign state holds. In the United States, the President derives these powers from the loosely worded statements in the Constitution that “the executive Power shall be vested in a President” and that the President should “take care that the laws be faithfully executed”; defined through practice rather than through constitutional or statutory law. In other words, Inherent powers are assumed powers of the president not specifically listed in the Constitution. Inherent powers come from the president’s role as chief executive.

The first three presidents, Washington, Adams, and Jefferson established their importance in different ways. First, Washington helped to establish them in the first place, when he wanted to use them as a basis for proclaiming a policy of strict neutrality when the British and French were at war. Then, due to Adams poor leadership skills, the Federalists and Anti-Federalists divisions were heightened and the development of political parties was quickened. Finally, Jefferson used the party system to cement strong ties with Congress and expanded the role of the president in the legislative process. He used the inherent powers to justify the Louisiana Purchase in 1803 which dramatically increased the size of our nation.

The question of presidential power is complicated by a key omission in certain Constitutional sentences’ language. As opposed to Article 1, which states that Congress is vested with the legislative powers “herein granted,” Article 2 does not use that language. It says all executive power is vested in the president. Supporters of the unitary executive theory argue that this means that the president’s power, particularly the inherent power that come with being commander in chief, are open ended and cannot be checked by the other two branches.

12.1.4: Emergency Powers

Learning Objective

Explain how states of emergency apply to the Executive Branch of the U.S. government

Key Points

• A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative, and judicial powers; alert citizens to change their normal behaviors; or order government agencies to implement emergency preparedness plans.
• At least two constitutional rights are subject to revocation during a state of emergency: The right of habeas corpus, under Article 1, Section 9 and the right to a grand jury for members of the National Guard when in actual service, under the Fifth Amendment.
• The Insurrection Act of 1807 is the set of laws that govern the U.S. president’s ability to deploy troops within the United States to put down lawlessness, insurrection, and rebellion.
• The National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them, and requires the president to specify in advance which legal provisions will be invoked.

Key Terms

insurrection act of 1807

The Insurrection Act of 1807 is the set of laws that govern the president’s ability to deploy troops within the United States to put down lawlessness, insurrection and rebellion.

habeas corpus

A writ to bring a person before a court or a judge, most frequently used to ensure that a person’s imprisonment, detention, or commitment is legal.

state of emergency

A government decree that a particular situation requires the implementation of pre-arranged responses on a large scale.

Example

• The United States has been in a state of national emergency continuously since September 14, 2001, when the Bush administration invoked it premised on the September 11 attacks. In September 2011, President Barack Obama informed Congress that the State of National Emergency, in effect since September 14, 2001, will be extended another year.

Introduction

A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative, and judicial powers; alert citizens to change their normal behaviors; or order government agencies to implement emergency preparedness plans. It also can be used as a rationale for suspending rights and freedoms, even if guaranteed under the Constitution. Such declarations usually come during a time of natural or man-made disaster, periods of civil unrest, or following a declaration of war or situation of international or internal armed conflict.

Application in the United States

In the United States, there are several methods for government response to emergency situations. A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters. The president of the United States, as head of the executive branch, has the authority to declare a federal state of emergency. At least two constitutional rights are subject to revocation during a state of emergency:

The right of habeas corpus, under Article 1, Section 9, and the right to a grand jury for members of the National Guard when in actual service, under Fifth Amendment.

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of Maryland and some midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in “copperheads,” those in the Union who supported the Confederate cause. On December 16, 1950, during the Korean War, President Truman issued Presidential Proclamation No. 2914, declaring a state of national emergency. In 1952, the Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer established that presidents may not act contrary to Acts of Congress during an emergency.

The Insurrection Act of 1807is the set of laws that govern the president’s ability to deploy troops within the United States to put down lawlessness, insurrection, and rebellion. The general aim is to limit presidential power as much as possible, relying on state and local governments for initial response in the event of insurrection. Coupled with the Posse Comitatus Act, presidential powers for law enforcement are limited and delayed.

During the Watergate scandal, which erupted in the 1970s after President Richard Nixon authorized a variety of illegal acts, Congress investigated the extent of the president’s powers and belatedly realized that the United States had been in a continuous state of emergency since 1950. As a result, in 1976, the National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them and requires the president to specify in advance which legal provisions will be invoked. The act terminated the emergency of 1950 on September 14, 1978; however, even in the twenty-first century, the federal courts have upheld harsh penalties for crimes that occurred during the state of national emergency from 1950 to 1978, where the penalties were escalated because of the existence of that emergency.

Impact of the September 11 Attacks

The United States has been continuously in a state of national emergency since September 14, 2001, when the Bush administration invoked it premised on the September 11 attacks. In September 2011, President Barack Obama informed Congress that the State of National Emergency, in effect since September 14, 2001, would be extended another year. The National Emergencies Act grants various powers to the president during times of emergency and was intended to prevent a president from declaring a state of emergency of indefinite duration .

On September 30, 2006, Congress modified the Insurrection Act, as part of the 2007 Defense Authorization Bill (repealed as of 2008). Section 1076 of the law changed Sec. 333 of the Insurrection Act of 1807 and widened the president’s ability to deploy troops within the United States to enforce the laws. Under this act, the president may also deploy troops as a police force during a natural disaster, epidemic, serious public health emergency, terrorist attack, or other condition, when the president determines that the authorities of the state are incapable of maintaining public order. The bill also modified Sec. 334 of this act, giving the president authority to order the dispersal of either insurgents or “those obstructing the enforcement of the laws. ” The law changed the name of the chapter from “Insurrection” to “Enforcement of the Laws to Restore Public Order. “

12.1.5: Executive Orders

Learning Objective

Compare and contrast the different types of executive orders made by the President

Key Points

• The term executive order is most commonly applied to orders issued by the President, who is the head of the executive branch of the federal government. Executive orders may also be issued at the state level by a state’s governor or at the local level by the city’s mayor.
• Executive orders have the full force of law, since issuances are typically made in pursuance of certain Acts of Congress, some of which specifically delegate to the President some degree of discretionary power.
• Although there is no Constitutional provision or statute that explicitly permits executive orders, there is a vague grant of executive power given in Article II, Section 1, Clause 1 of the Constitution.
• A Presidential Determination is a document issued by the White House stating a determination resulting in an official policy or position of the executive branch of the United States government.
• Presidential memoranda do not have an established process for issuance or publication. Presidential memoranda are generally considered less prestigious than executive orders.

Key Terms

executive agreement

an understanding, less formal than a treaty, between the United States (both the executive and legislative branch, or just the executive branch) and the government of a foreign state

presidential memoranda

Presidential memoranda do not have an established process for issuance or publication. Presidential memoranda are generally considered less prestigious than executive orders. There are three types of memorandum: presidential determination or presidential finding, memorandum of disapproval, and hortatory memorandum.

executive order

A legally enforceable order, decree, or regulation issued on the authority of the head of the executive branch of government.

presidential determination

A Presidential Determination is a document issued by the White House stating a determination resulting in an official policy or position of the executive branch of the United States government.

Example

• One of the most famous presidential determinations was President Clinton’s Presidential Determination 95-45, which exempted the U.S. Air Force’s facility in the vicinity of Groom Lake, Nevada (commonly called Area 51) from environmental disclosure laws, in response to subpoenas from a lawsuit brought by Area 51 workers alleging illegal hazardous waste disposal which resulted in injury and death. Subsequent to this determination, the lawsuit was dismissed due to lack of evidence.

Introduction

In the United States, an executive order is an order or directive issued by the head of the executive branch at some level of government. The term executive order is most commonly applied to orders issued by the President, who is the head of the executive branch of the federal government. Executive orders may also be issued at the state level by a state’s governor or at the local level by the city’s mayor.

U.S. Presidents have issued executive orders since 1789, usually to help officers and agencies of the executive branch manage the operations within the federal government itself. Executive orders have the full force of law, since issuances are typically made in pursuance of certain Acts of Congress. Typically, these specifically delegate to the President a degree of discretionary power, or are believed to take authority from a power granted directly to the Executive by the Constitution. However, these perceived justifications cited by Presidents when authoring Executive Orders have come under criticism for exceeding Executive authority; at various times throughout U.S. history, challenges to the legal validity or justification for an order have resulted in legal proceedings.

Basis in U.S. Constitution

Although there is no Constitutional provision or statute that explicitly permits executive orders, there is a vague grant of executive power given in Article II, Section 1, Clause 1 of the Constitution, and furthered by the declaration “take Care that the Laws be faithfully executed” made in Article II, Section 3, Clause 5. Most executive orders use these Constitutional interpretations as the authorization allowing for their issuance to be justified as part of the President’s sworn duties. The intention is to help direct officers of the U.S. Executive carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.

Different Applications by President

A Presidential Determination is a document issued by the White House stating a determination resulting in an official policy or position of the executive branch of the United States government. Presidential determinations may involve any number of actions, including setting or changing foreign policy, setting drug enforcement policy, or any number of other exercises of executive power. One of the most famous presidential determinations was President Clinton’s Presidential Determination 95-45, which exempted the U.S. Air Force’s facility in the vicinity of Groom Lake, Nevada (commonly called Area 51) from environmental disclosure laws, in response to subpoenas from a lawsuit brought by Area 51 workers alleging illegal hazardous waste disposal which resulted in injury and death. Subsequent to this determination, the lawsuit was dismissed due to lack of evidence.

Similarly, presidential memoranda do not have an established process for issuance or publication. Presidential memoranda are generally considered less prestigious than executive orders. There are three types of memorandum: presidential determination or presidential finding, memorandum of disapproval, and hortatory memorandum.

Finally, a presidential proclamation “states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized). ” Presidents define situations or conditions on situations that become legal or an economic truth . These orders carry the same force of law as executive orders—the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government. The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers.” Presidential proclamations are often dismissed as a practical presidential tool for policymaking because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.

12.1.6: Executive Privilege

Learning Objective

Analyze the application of executive privilege by the President since World War II

Key Points

• The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine.
• The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege.
• The Clinton administration invoked executive privilege on fourteen occasions. In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court.
• On June 20, 2012, President Barack Obama asserted executive privilege, his first, to withhold certain Department of Justice documents related to the ongoing Operation Fast and Furious controversy.

Key Term

executive privilege

In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government.

Introduction

In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of the executive branch in its own area of Constitutional activity.

The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the prosecutor to make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case. ” Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.

Historical Development

During the period of 1947-49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous Hiss-Chambers case of 1948. At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from the FBI and other executive data on security problems. During the Army–McCarthy hearings in 1954, Eisenhower used the claim of executive privilege to forbid the “provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people. ” Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions.

U.S. v. Nixon

The Supreme Court addressed “executive privilege” in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration . Nixon invoked the privilege and refused to produce any records. Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.

Post-Nixon

The Clinton administration invoked executive privilege on fourteen occasions. In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court, when a federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal.

Correspondingly, the Bush administration invoked executive privilege on six occasions. President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno, the scandal involving the Federal Bureau of Investigation (FBI) misuse of organized-crime informants James J. Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton’s fundraising tactics, in December 2001. On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove. The subpoena would have required the President’s Senior Advisor to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors.

On June 20, 2012, President Barack Obama asserted executive privilege, his first, to withhold certain Department of Justice documents related to the ongoing Operation Fast and Furious controversy ahead of a United States House Committee on Oversight and Government Reform vote to hold Attorney General Eric Holder in Contempt of Congress for refusing to produce the documents. Later the same day, the United States House Committee on Oversight and Government Reform voted 23-17 along party lines to hold Attorney General Holder in contempt of Congress over not releasing documents regarding Fast and Furious.

12.1.7: The Expansion of Presidential Powers

Learning Objective

Discuss how the powers and duties of the President have changed over time

Key Points

• The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces.
• The president is the head of the executive branch of the federal government and is constitutionally obligated to “take care that the laws be faithfully executed. ” The executive branch has over four million employees, including members of the military.
• Perhaps the most important of all presidential powers is command of the United States Armed Forces as commander-in-chief. While the power to declare war is constitutionally vested in Congress, the president commands and directs the military and is responsible for planning military strategy.

Key Term

executive privilege

In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government.

Chief Legislator

The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces.

Powers and Duties

The first power the Constitution confers upon the president is the veto. The Presentment Clause requires any bill passed by Congress to be presented to the president before it can become law. Perhaps the most important of all presidential powers is command of the United States Armed Forces as commander-in-chief. While the power to declare war is constitutionally vested in Congress, the president commands and directs the military and is responsible for planning military strategy. Congress, pursuant to the War Powers Resolution, must authorize any troop deployments longer than 60 days, although that process relies on triggering mechanisms that have never been employed, rendering it ineffectual. Additionally, Congress provides a check to presidential military power through its control over military spending and regulation.

The president is the head of the executive branch of the federal government and is constitutionally obligated to “take care that the laws be faithfully executed. ” The executive branch has over four million employees, including members of the military. Presidents make numerous executive branch appointments–an incoming president may make up to 6,000 before he takes office and 8,000 more during his term. Ambassadors, members of the Cabinet, and other federal officers are all appointed by a president with the “advice and consent” of a majority of the Senate. Appointments made while the Senate is in recess are temporary and expire at the end of the next session of the Senate.

Historically, two doctrines concerning executive power have developed that enable the president to exercise executive power with a degree of autonomy. The first is executive privilege, which allows the president to withhold from disclosure any communications made directly to the president in the performance of executive duties. George Washington first claimed executive privilege when Congress requested to see Chief Justice John Jay’s notes from an unpopular treaty negotiation with Great Britain. While not enshrined in the Constitution, or any other law, Washington’s action created the precedent for the privilege. When Richard Nixon tried to use executive privilege as a reason for not turning over subpoenaed evidence to Congress during the Watergate scandal, the Supreme Court ruled in United States v. Nixon, 418 U.S. 683 (1974) that executive privilege did not apply in cases where a president was attempting to avoid criminal prosecution. When President Bill Clinton attempted to use executive privilege regarding the Lewinsky scandal, the Supreme Court ruled in Clinton v. Jones, 520 U.S. 681 (1997) that the privilege also could not be used in civil suits. These cases established the legal precedent that executive privilege is valid, although the exact extent of the privilege has yet to be clearly defined. Additionally, federal courts have allowed this privilege to radiate outward and protect other executive branch employees, but have weakened this protection for those executive branch communications that do not involve the president .

Critics of Enhanced Presidency

Most of the nation’s Founding Fathers expected the Congress, which was the first branch of government described in the Constitution, to be the dominant branch of government. In other words, they did not expect a strong executive. However, presidential power has shifted over time, which has resulted in claims that the modern presidency has become too powerful, unchecked, unbalanced, and “monarchist” in nature. Critic Dana D. Nelson believes presidents over the past thirty years have worked towards “undivided presidential control of the executive branch and its agencies. ” She criticizes proponents of the unitary executive for expanding “the many existing uncheckable executive powers – such as executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements – that already allow presidents to enact a good deal of foreign and domestic policy without aid, interference or consent from Congress.” Other scholars disagree with the view that the presidency has too much power and cite the ability of Congress and the courts to block presidential actions. As an example, the Supreme Court in 2016 overturned Pres. Obama’s administrative appointment made during a Congressional recess, and is scheduled to rule on the constitutionality of an executive order know as DACA (Deferred Action for Childhood Arrivals) that delays deportation of undocumented residents who arrived as children.