CHAPTER ELEVEN
When the founders created the three branches of the
government, they disagreed about the amount of power to be vested in the
executive. Many feared more than anything a strong president whose powers could
be compared to those of the king of England. Others believed, in the words of
Alexander Hamilton, that "energy in the executive is a leading
characteristic of good government." As the modern presidency has evolved,
Hamilton's point of view seems to prevail today, as the president is the single
most powerful individual in the American political system. Although the checks
and balances set in motion in 1787 still operate, the presidency described in
the Constitution is much different from the one that we have today.
Constitutional provisions limited the early presidency,
although the personalities of the first three presidents ö George Washington,
John Adams, and Thomas Jefferson ö shaped it into an influential position by
the early 1800s. However, all
through the 1800s up until the 1930s, Congress was the dominant branch of the
national government. Then, in the
past seventy years or so, the balance of power has shifted dramatically, so that
the executive branch currently has at least equal power to the legislative
branch. How did this shift happen?
THE PRESIDENCY IN THE CONSTITUTION
Article II of the Constitution defines the
qualifications, powers, and duties of the president and carefully notes some
important checks of the executive branch by the legislature.
Qualifications
Powers and Duties
The
Constitutional powers and duties of the president are very limited. Those
specifically granted are as follows:
According
to Article II, Section One, the president holds "the executive power"
of the United States. The "executive" was meant to
"execute", or administer the decisions made by the legislature. This
phrase at least implies an executive check on the legislature, and in fact, has
been the source of presidential power over the years.
á
Military power - The president is commander in chief of the
armed services. The intention of the founders was to keep control of the
military in the hands of a civilian, avoiding a military tyranny. In Madison's
words (Federalist No. 51), "Ambition must be made to counteract
ambition." As commander in
chief, the president has probably exercised more authority than in any other
role. Although Congress has the
sole power to declare war, the president can send the armed forces into a
country in situations that are the equivalent of war.
Congress has not officially declared war since December 8, 1941 (one day
after the attack on Pearl Harbor), yet the Country has fought wars in Korea,
Vietnam, and the Middle East. Congress
attempted to control such military activities when it passed the War Powers
Resolution in 1973, requiring the president to consult with Congress when
activating military troops. The
president must report to Congress within forty-eight hours of deploying troops,
and unless Congress approves the use of troops within sixty days or extends the
sixty-day time limit, the forces must be withdrawn. Even so, the presidentâs powers as commander in chief are
more extensive today than they have ever been before.
From
the very beginning, informal influences have shaped the presidency. The framers
almost certainly fashioned the president in the image of George Washington, the
man unanimously selected to first occupy the office. Washington's qualities of
wisdom, moderation, and dignity defined the more formal duties and powers, and
his nonpartisan attitudes created expectations for behavior in presidents that
followed. Other strong presidents have contributed to the presidency as it
exists today, such as Andrew Jackson, who first used the veto power extensively;
Abraham Lincoln, who carried the meaning of "commander in chief" to
new heights during the Civil War; and Franklin Roosevelt, who formulated
sweeping New Deal policies that were finally checked by the Supreme Court. Many
informal qualifications, powers, and duties of the president have evolved that
are not mentioned in Article II of the Constitution.
Executive
Privilege
The
Constitution says nothing about presidential rights to keep private
communications between himself and his principal advisers, but presidents have
traditionally claimed the privilege of confidentiality ö executive
privilege. Their claim is based on two grounds.
Even
though Congress has never liked executive privilege, the right was not
questioned seriously until 1973 when the Supreme Court addressed the issue
directly. As a part of the Watergate investigations, a federal prosecutor sought
tape recordings of conversations between Richard Nixon and his advisers. Nixon
refused to give the tapes over, claiming executive privilege. In United
States v. Nixon the Court held that there is no "absolute
unqualified presidential privilege of immunity from judicial process under all
circumstances." In this case, executive privilege would block the
constitutionally defined function of federal courts to decide criminal cases.
Executive
privilege has been further defined by Nixon v. Fitzgerald (1982),
which states that presidents cannot be sued for damages related to official
decisions made while in office. In
1997 President Clinton tried to extend this protection to cover all civil suits,
but in Clinton v. Jones the Court ruled against his argument that
civil suits against a chief executive distract him from presidential duties.
These decisions have restricted executive privilege, but they have not
eliminated it. In all cases the
Court has assumed that the president has the right of executive privilege.
Impoundment of Funds
Impoundment
is the presidential practice of refusing to spend money appropriated by
Congress. Although many previous presidents impounded funds, the test case came
with Richard Nixon. A major goal of his administration was to reduce federal
spending, and when the Democratic Congress passed spending bills, he responded
by pocket-vetoing twelve bills and then impounding funds appropriated under
other laws that he had not vetoed. Congress in turn passed the Budget Reform
and Impoundment Act of 1974 that required the president to spend all
appropriated funds, unless Congress approved the impoundment. Federal courts
have upheld the rule that presidents must spend money that Congress
appropriates.
The
President as Morale Builder
The founders had no way of knowing the evolutionary
importance of the symbolic and morale-building functions a president must
perform. People turn to their
presidents for meaning, healing, assurance, and a sense of purpose. This
function is particularly important during times of crisis, such as the period
following the attacks on the World Trade Towers and the Pentagon on September
11, 2001. The president is expected
to help unify the nation, represent our common heritage, and create a climate
that encourages diverse elements to work together.
Agenda
Setting
The Constitution
provides the basis for the important power of agenda setting ö or
determining policy priorities - for the nation. According to Article Two,
Section Three,
"He shall from time to time give to the Congress
Information of the State of the Union, and recommend to their Consideration such
Measures as he shall judge necessary and expedient."
Even though Congress
is charged with passing legislation, the president is expected to make policy
proposals in many areas. Presidents often initiate foreign policy, economic
goals and plans, and programs that improve the quality of life of citizens.
Franklin Roosevelt set a precedent when he shepherded his New Deal policies
through the legislature, taking responsibility for programs to get the country
out of the Great Depression.
Sometimes
initiatives are outlined as campaign issues and are refined by the executive
office staff, special task forces, and by Congress. For example, President
George W. Bush introduced Social Security reform in the 2000 presidential
campaign, an issue that he promoted as president, especially after his
reelection in 2004. Initiatives may
fail, as did President Clinton's health care proposals in 1993. Presidents
generally have more leeway in foreign policy and military affairs than they have
in domestic matters,
largely because the founders anticipated a special need for speed and unity in
our relations with other nations.
The Power of Persuasion
An
effective president is a good politician, a mobilizer of influence in the
American political system. Because his formal powers are limited, he must spend
much time persuading people to support his agenda.
The
president's persuasive powers are aimed at three audiences: fellow politicians
and leaders in Washington, party activists and officeholders outside Washington,
and the public, with its many different views and sets of interests. All three
audiences influence the decision-making process, and the president has the
visibility and power to persuade them to listen to his priorities. A powerful
president is often at the center of the give-and-take negotiations among these
groups, and an effective persuader can be the catalyst that makes its all work.
Congress
allows the president to issue executive orders that have the force of
law. These executive orders may
enforce the Constitution, treaties, or legislative statutes, or they may
establish or modify rules and practices of executive administrative agencies.
The only restriction on executive orders is that they must be published
in the Federal Register, a daily publication of the U.S. Government.
In
recent years many critics have suggested a line-item veto reform that
would allow presidents to veto sections of bills without rejecting the whole
thing. Congress passed the
Line-Item Veto Act in 1996, which allowed the president to veto sections of
appropriations bills only. When
President Clinton exercised this new provision, the law and the presidentâs
action were challenged in Clinton v. City of New York (1997).
The Supreme Court ruled both the law and the action unconstitutional,
criticizing them for permitting the president to construct legislation ö an
abuse of the principle of separation of powers.
Just
as early presidents were held to the standards of Washington's personal
qualities, modern presidents are judged in terms of the public perception of
their personality and character. In his book The Presidential
Character, Professor James Barber assessed presidents by two
character-based criteria:
He
concluded that these basic personality characteristics shape a president's
approach to his job and largely determine important decisions. For example,
Franklin Roosevelt's positive, activist character forged the New Deal programs
and U.S. foreign policy during World War II. Likewise, Richard Nixon's negative,
activist character made it difficult for him to mobilize support from Congress,
the media, and the public, even though he actively pursued his ambitious foreign
policy goals. A passive, positive president, such as Gerald Ford, may be genial
and well liked, but the lack of aggressive goals and administration of policy
make his presidency an undistinguished one. Scholars disagree over whether
Barber's theories work, but few deny the importance of personality and character
in presidential decisions.
Over
the past fifty years, a significant trend has developed: divided government,
or a government in which one party controls the White House and a different
party controls one or both houses of Congress. Until 2003, only two exceptions
occurred. Between 1993 and 1995,
the Democrats controlled both branches, and for a few months in early 2001, when
the Republicans briefly dominated. However,
with the midterm election of 2002, Republicans gained control of both houses,
putting both branches under Republican control.
The election of 2004 affirmed this arrangement, leading many to speculate
that a new Republican era was dawning.
Many
people criticize divided government because it produces "gridlock,"
or the inability to get anything done because the branches bicker with one
another and make decisions difficult. A unique illustration of gridlock occurred
in 1995 and 1996 when Congress and the president could not agree on the federal
budget, thus shutting down many government operations, including national parks
and federal offices, until an agreement could be reached. Even though gridlock
may slow the process of decision-making, some supporters of divided government
believe that it is not necessarily bad because better balanced policies may
result. Others believe that a unified government is a myth, with struggles
between the branches a natural part of the give and take of checks and balances.
In this scenario, gridlock is just as likely to occur when one party controls
both branches as it is when a "divided government" exists.
Democratic filibusters in 2003 and 2004 against judicial nominees put
forward by President George W. Bush support the notion that gridlock between the
branches is an ongoing process.
OTHER IMPORTANT
MEMBERS OF THE EXECUTIVE BRANCH
Just
as the power of the presidency has grown tremendously in recent years, so have
the numbers of people that surround him in high-level jobs in the executive
branch. George Washin
"I do not choose to be buried until I am already
dead."
A
nineteenth century presidential hopeful, Daniel Webster, declined the vice
presidency with the above words, expressing a sentiment repeated by many vice
presidents over time. The founders paid little attention to the office and
assigned it only two formal duties:
The most important function of the vice president is to
take over the presidency if the president is unable to fill his term. That has
only happened nine times in history, but of course, the vice president must be
qualified to take over the presidency.
A
vice president's role in any administration is almost entirely up to the
president. Although the original constitution designated the runner-up for the
presidency as the vice president, the 12th Amendment was
passed in 1804, which provided for electors to vote for a
president/vice-president slate. Traditionally, a presidential candidate chooses
a vice presidential partner, usually based on a "balance" to the
ticket (region, age, popular base, party subgroup).
In
recent years, presidents have given more and more important duties to vice
presidents. They often represent the president for important ceremonies, sit on
boards or projects, and advise him on major, sometimes specialized, issues. For
example, Vice President Al Gore advised President Bill Clinton on environmental
issues and headed a national review of the federal bureaucracy.
President George W. Bush has involved Vice President Dick Cheney in many
policy areas, including those shaped in reaction to the terrorist acts of
September 11, 2001.
The vice president is often considered as a presidential
candidate when the President's term expires, although George H. Bush was the
first Vice President to succeed immediately to the presidency since Martin Van
Buren succeeded Andrew Jackson in 1837.
Even though a vice president may receive his partyâs nomination, he
doesnât always win the general election.
Examples include Richard Nixon in 1960, Hubert Humphrey in 1968, Walter
Mondale in 1984, and Al Gore in 2000.
THE WHITE HOUSE OFFICE
Some
of the most influential people in government are in the presidentâs White
House Office. The organization of
the staff is entirely up to the president, and their titles include ãchief of
staff,ä "counsel," "counselor," "assistant to the
president," "special consultant," or ãpress secretary.ä These
aides are appointed by the president without Senate confirmation, and they may
be fired at will. Often they do not serve an entire presidential term.
The
organization of the White House Office has been analyzed according to two
models:
THE
EXECUTIVE OFFICE OF THE PRESIDENT
The
Executive Office consists of agencies that report directly to the president and
perform staff services for him. Some agencies are large bureaucracies. The
president appoints the top positions, but unlike the White House Staff members,
these Executive Office appointees must be confirmed by the Senate.
The Executive Office agencies include the following:
THE
CABINET
The cabinet is the
oldest traditional body of the executive branch. The first cabinet members were
appointed by Washington to serve as secretary of state, secretary of the
treasury, secretary of war, and attorney general. From the earliest feuds
between Thomas Jefferson and Alexander Hamilton, the cabinet almost never has
served as a deliberative body of presidential advisers. In truth, the cabinet
does not have much influence over presidential decisions, nor does it help the
president to gain control over the bureaucracy.
Cabinet officers are
the heads of fourteen major departments. The order of their creation is
important for protocol. When the cabinet meets, the secretary of state sits on
one side and treasury on the other, and so forth down the table so that the
newest departments are the farthest away from the president. They are appointed
by the president and must be confirmed by the Senate.
The original four positions (secretary of war is now called ãsecretary
of defenseä), are known as the ãinner cabinet,ä as still generally
have the most power and influence.
The president has
very little power over cabinet departments partly because he cannot appoint more
than a small number of all a department's employees. The most important reason
that the departments operate independently from the president is that cabinet
members spend the large majority of their time on departmental business, and
seek to defend and promote their own organizations in cabinet meetings. What
results is that they often compete with one another for precious resources and
attention, and represent the departments to the president rather than
functioning as the president's representative to the departments.
INDEPENDENT
AGENCIES AND COMMISSIONS
The president also appoints people to agencies and
commissions that by law often have an independent status. In contrast to the
heads of "executive" agencies, the heads of independent agencies serve
by law for fixed terms of office and can be removed only "for cause."
The agencies are created by Congress, and include such well-known bodies as the
Federal Reserve Board, the Federal Communications Commission, the Federal
Deposit Insurance Corporation, the Interstate Commerce Commission, and the
Securities and Exchange Commission.
One
very important characteristic of the American political system is that no one
seriously questions the process of selecting a president.
Nor have we ever had anything other than a peaceful transition between
presidents. Of course, people
criticize the men that we choose, not to even mention the fact that we have
never chosen a women. What people
accept almost completely is how a president is chosen or that
he should leave office when his time is up.
The
method of selection of the president was one of the most controversial topics at
the Constitutional Convention. Most of the framers did not trust the public to
directly elect the president, but under the checks and balances system, neither
could Congress be allowed to select the head of the executive branch. The
solution to the dilemma was to create an electoral college, a group of
electors chosen by each state who would meet in their respective state capitals
to vote for president and vice president. Many framers believed that states
would vote for favorite sons and that often the election would be decided by the
House of Representatives. It did
not work out as they expected, largely because they did not foresee the
important role that political parties would play in presidential selection.
Today, all major presidential candidates are selected by
their political parties, even though Ross Perot tried to capture the presidency
in 1992 without the backing of a party. In 1996, he proved the importance of
political parties in the selection process when he tried to run again, but as
head of a third party. Presidential candidates are chosen through presidential
primaries, and are nominated at a party convention in the summer before a
general election in November. The electoral college members in each state vote
ö either by law or tradition - for the same candidate that the majority of
voters in the state chose.
RECENT CONTROVERSY
Until the election of 2000, the electoral college was regarded primarily as a formality that didnât affect the outcomes of presidential election. However, in 2000 Democratic candidate Al Gore won the popular vote, but George W. Bush became President because he won the electoral vote. The situation opened a debate, with electoral college supporters arguing that the system protects regional and local balance, and its critics claiming that the electoral college voting system is undemocratic. In the election of 2004 a few thousand changes of votes from George W. Bush to John Kerry would have created the situation again, but in reverse. However, President Bushâs narrow victory in Ohio meant that he gained both a popular and electoral majority.
According
to the Constitution, the president's elected term of office is four years, but
no mention is made of the number of terms a president may serve. By a precedent
set by George Washington, who retired after two terms, no president before
Franklin Roosevelt served longer than two terms. However, in the midst of
economic depression and a world war, Roosevelt ran for and won a third and
fourth term of office, although he died before he completed the last one.
Because the tradition was seen as a safeguard against tyranny, Congress added
the 22nd Amendment to the Constitution, limiting a president to election
to two terms and/or serving no more than ten years. A vice president who becomes
president with less than two years remaining in the previous president's term
may run for the office two times on his own.
Presidential Disabilit
Among twentieth
century Presidents, Woodrow Wilson became incapable of carrying out his job
after he suffered a stroke, and his wife apparently made many presidential
decisions. Likewise, Dwight Eisenhower was unable to function as President for
several weeks after a debilitating heart attack. The 25th
Amendment (1967) to the Constitution covers this important problem
concerning the presidential term: disability and succession. It permits the vice president to
become acting president if the vice president and the cabinet determine that the
president is disabled. If the president challenges the executive decision,
Congress decides the issue. The amendment also outlines how a recovering
president can reclaim the Oval Office.
Presidential Succession
The 25th Amendment
also created a method for selecting a vice president when the office is vacated.
The president nominates a new vice president, who assumes office when both
houses of Congress approve the nomination by a majority vote. A vice president
who assumes the presidency then nominates a new vice president who is also
confirmed by Congress. If there is no vice president, then a 1947 succession law
governs: next in line are the speaker of the house, the Senate pro tempore,
and the thirteen cabinet officers, beginning with the secretary of state.
The disability
provision has never been used, but the vice presidential succession policy has.
In 1973, Vice President Spiro Agnew resigned amidst charges of bribery, and
President Nixon appointed Gerald Ford in his place. The next year, Nixon
resigned as a result of the Watergate scandal, Ford became president, and he
appointed Nelson Rockefeller as vice president. For the first time in history,
both the presidency and vice presidency were held by appointed, not elected,
officials.
THE IMPEACHMENT PROCESS
The
Constitution provides a way to remove a president before his term is over, but
it is not an easy process. The House of Representatives may, by majority vote,
impeach the president for "Treason, Bribery, or other high
Crimes and Misdemeanors." Once the House impeaches the president, the case
goes to the Senate, which tries the president, with the chief justice of the
Supreme Court presiding. By a two-third vote, the Senate may convict and remove
the president from office. Only two presidents have been impeached:
Richard Nixon came close to impeachment when on July 31,
1974, the House Judiciary Committee voted to recommend his impeachment to the
House as a result of the Watergate scandal.
Nixon avoided impeachment by resigning from the presidency a few days
later.
Other
civil officers besides the president may be impeached, but the provision has had
the most meaning for federal judges, who serve for life and are constitutionally
independent of the president and Congress. Fifteen judges in U.S. history have
been impeached by the House, and seven have been convicted by the Senate.
Despite
gridlock, the recent impeachment process, and the disputed election of 2000, the
institution of the presidency has survived. The responsibilities and privileges have changed over time so
that the office is much more powerful than the one created by the Constitution.
Even though events of recent years have checked presidential power, few
people would argue that the president is still the most influential and
respected single political leader in the country.
IMPORTANT
DEFINITIONS AND IDENTIFICATIONS:
ãadvice
and consentä
agenda
setting
Budget
Reform and Impoundment Act of 1974
circular v. pyramid
model
Clinton v. Jones
diplomatic
recognition
divided
government
electoral
college
executive
agreements
Executive
Office of the President
executive
orders
executive
privilege
gridlock
impeachment process
impoundment
inner cabinet
line-item veto
Nixon v. Fitzgerald
presidential
succession
The Presidential Character
United States v.
Nixon
War Powers Resolution
White House Office
12th
Amendment
22nd
Amendment
25th Amendment