POLI SCI 320 MIDTERM #2

Mansfield core point

there are two meanings of executive, the clerk and the enforcer, where the weak serves as a cloak for the strong to not appear tyrannical, the essence of executive power is its ambivalence, not a defect, but a deliberate construction

Skowronek core point

modern American governance is destabilized by the fundamental, confrontational tension between the "Deep State" and the "Unitary Executive" - the expansive, unilateral theory of the Unitary Executive is now fused with a highly politicized, plebiscitary democracy

Justice Robert Jackson core point

Executive overreach can be identified and assessed based on the level of congressional approval

Howell and Moe core point

all modern presidents seek to expand their power and historical legacies by deploying the vast resources of the administrative state, using centralization and politicization to achieve policy through unilateral action. Asymmetric logic - as administrative state primarily embodies progressive values, republican presidents have increasingly extreme powers, leveraging UET to retrench and sabotage potions of it

Nunn’s core point

The Insurrection Act, especially the second part of section 253 which allows the deployment of military “under any state that may obstruct the execution of laws” is dangerously vague, broad and ripe for abuse as it allows the President limitless discretion to deploy the military domestically.

Rudalevige core point

persistent reliance on unilateral presidential power to overcome the structural inefficiency of gridlock, creating an ongoing tension between President’s desire for efficiency and constitutional demand for accountability through Congress

Federalist 70

“Energetic executive” is essential for good governance, and is based in 4 points - unity (single executive), duration (sufficiently long term), adequate provision for its support (sufficient financial resources to be strong and effective), competent powers (decisively and effectively especially in emergencies)

Trump v. United States

connects to the preservation of the “energetic executive” explained in Fed. 70, implemented to prevent criminal law from being used to harass or intimidate a president, thereby stopping their ability to act decisively and effectively

Article I: Congress

Comes first, longest, Specific, enumerated power - Legislate on matters of economy, trade, war, and peace, law and order

Elastic clause/Necessary and Proper Clause

Congress is able “to make laws that 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”

congress has the implied power to create laws to carry out its other powers- president does not have sole authority

Take care clause

“he shall take Care that the Laws be faithfully executed.”

in article II, Faithfully executed – whatever congress intended for a law to do, the president must abide by that

Article II

Brief, broad, and ambiguous, “Executive power resides in the silences of the constitution,” allowing president to interpret and exercise their power

The vesting clause

“The executive power shall be vested in a president of the united states of America” one president, not a council

Ambivalence of executive power

Executive power can look weak and strong at differing times. when executive clerkship is the norm, if a moment of enforcement is used, people aren’t in fear of tyranny using the mask of clerkship

executive as clerk

“carries out” the law with restraint

executive as enforcer

bringing the law into effect, taking initative and direction by punishing, threatening, and overall doing more than just asking for compliance

Mansfield about clerk/enforcer

two definitions of the executive are the “same thing in two phases or aspects.”  The executive is BOTH clerk AND enforcer: carries out the will of others AND takes the initiative to ensure compliance

How does executive power go beyond “clerkship?”

• Veto legislation

• Pardon power

• Commander-in-chief

• Superior authority in the executive branch

How is the executive power mandated to “take care that the laws be faithfully executed”

• Must collaborate with and support other constitutional actors

• “Recommend” measures to congress 

How do we explain the ambivalence in executive power? (mansfield)

law needs to be ambiguous and general, impossible to predict human challenges and executive must fill in the gaps

Mansfield and “the prince”

the executive must sometimes punish and make old displays of power (Machiavelli)

• prince justifies tyranny by claiming to be acting on behalf of something else, and so does the president, in nature tyrannical

Hamilton vs. Madison over the Neutrality Proclamation

• Hamilton (pacificus): The vesting clause implies a general grant of authority for the president, discretion about its meaning and use; subject only to exceptions and qualifications which are expressed in the constitution

• Madison (Helvidius):  President cannot “make” laws, and Hamilton’s view is “in practice a tyranny”

Lincoln and the oath of office

• Lincoln used the presidential oath to "preserve, protect and defend the Constitution" to justify taking actions that might be "otherwise unconstitutional" but were "indispensable to the preservation of the nation and Constitution itself

• Used the analogy that a limb (a minor law or slavery) must sometimes be amputated to save a life (the nation/constitution)

TR vs. Taft

stewardship theory vs whig theory

Stewardship theory

Teddy Roosevelt - President is singular unitary officer, the only one who represents the whole country, President should do whatever they think is necessary other than what is explicitly forbidden by the laws of the constitution

Vesting clause is an obligation to act forcefully on behalf of the nation

Whig Theory

Taft - Vesting clause merely sets up an office and a title, Presidential power is what the constitution says it is and no more, president should not break through the constitution because it seems to be in the public interest

Broad overview of stewardship vs. whig

P should do whatever is necessary, unless they are formally proscribed from doing so by law, vesting as source of power vs. Presidential power is what the Constitution expressly grants, and no more

How different are the stewardship and whig theories?

Both allow for interpretation according to circumstance, but stewardship is based on the president’s role as a representative and whig is based on strict legal interpretation

paradox at the heart of constitutional government

Executive must be strong enough to act beyond the law when necessary but not so strong that it won’t submit to constitutional limits when normalcy returns

The unitary executive theory

legal concept asserting that the U.S. President has sole and absolute control over the executive branch stemming from article II and the vesting clause - President can direct the actions of executive officials and is the only one who can remove them

Youngstown Sheet & Tube

President Truman, executive order to seize control of steel mills

The Ruling: lacked the authority to seize private property in this manner without congressional approval

Justice Robert Jackson’s three conditions

when the president acts pursuant to a law, when the president acts contrary to a law, when there is no law

1. When the president acts pursuant to a law

His authority is at its maximum, he possesses his own right plus all that Congress can delegate

2. When the president acts contrary to a law

he can only rely on his constitutional powers minus any constitutional powers of Congress

3. When there is no law

He can only rely upon his independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority in which its distribution is uncertain

zone of twilight

where the President acts in the absence of either a congressional grant or denial of authority (congressional intertia) - presidential powers are uncertain and depend on the situation and may invite unilateral action

congressional intertia

Tendency for Congress to be resistant to making changes to laws or policies, leading to a stagnation of legislation which can invite unilateral presidential action 

implications of UET

The president has sole control over the entire executive branch, cannot be constrained in their management of the executive branch, The president has personal discretion in how they exercise the executive power 

Clash of UET (Principal Agent)

If the president holds all executive power, then all subordinates are accountable to the president

• Principal-agent theory where executive branch officials = agents and president = principal doesn’t align
  conflicting goals since they are accountable to the constitution, congress, and the people

Accountable to the president or the constitution?

civil servants and military are meant to defend the constitution, if the president’s directives violate the Constitution, military and civil officials have a legal and ethical duty to disobey president is subordinate to it

Plebiscitary theory

strengthen relationship between president and the people

administrative theory

Establish neutral, competent, bureaucracy, separate from politics

new deal and UET 

Fused plebiscitary and administrative theories: centralized decision-making + more presidential appointees = responsive competence 

UET under Ronald Reagan

Advanced plebiscitary, administrative, and novel legal theory (UET) around the president’s regulatory authority

UET under George W. Bush

Plebiscitary + administrative +legal theory + expanded concept of emergency ex. War on terror

UET under Trump

Plebiscitary + administrative +legal theory + greatly expanded concept of emergency ex. tariffs, immigrant invasion

rival theory to UET: checks and balances/republican theory

if UET is the “proper” reading of the Constitution, why are there checks and balances?

republican theory

Administrative of government is a collective project, The "true" public interest is distilled through interbranch conflict/collaboration, not declared by one branch (the President)

Instantiations of collective responsibility in the Constitution

• “Take Care” clause in Article II

• “Declare” war vs. commander-in-chief

• “Necessary and proper” clause in Article I

• Congressional power over executive branch

Mechanisms to tame the prince

constitutional government, a system of checks and balances, and the rule of law

Skowronek on checks and balances clash

The UET claim “slices through depth extends hierarchical control, and stamps administration with the will of the president”… “On a plain reading of the text, however, the republican theory seems no less plausible than the unitary theory, and that has become our dilemma”

When is the president allowed to federalize a state’s national guard

• The US is invaded or in danger of invasion

• There is a rebellion or danger of one

• President is unable "with the regular forces to execute [federal] laws”

Insurrection act

Even more power to deploy military domestically than the president already has in title 10 due to it being overly broad “by using militia or the armed forces, or both, or by any other means…”

Strongman Presidency (Howell and Moe)

The U.S. president has evolved from a constrained executive to a potential threat to democracy; the danger is asymmetric: Republican presidents since Reagan have pursued more expansive unilateral power to weaken government itself with less regard for democratic guardrails; the modern presidency is now structurally primed for the authoritarian drift 

Basis of Howell and Moe’s thesis

built on the interaction between a Symmetric Logic (how all presidents act) and an Asymmetric Logic (how Republican presidents, in particular, act)

Unilateral actions include…

• Use of executive orders, agency rulemaking, national security directives

Centralization

create bodies that give the president more influence on what the executive branch does

Politicization

• tap loyalists to fill positions that allow president to appoint like-minded people, friends to ensure responsiveness from bureaucracy, do what the president wants

Symmetric logic (unilateral tools)

Since the vast Administrative State is both an opportunity and a constraint , all presidents have incentives to overcome institutional obstacles by using unilateral tools

• centralization, politicization 

asymmetric logic components

1. Administrative state → (progressive era liberal-democratic project)

2. partisan polarization —> Democrats: state = public good, republicans state = threat

3. nixon —> template politicizes bureaucracy, fires civil servants

4. UET —> normalized, Removal power, unilateral directives

5. reagan —> strong executive power to pursue anti-government agenda

6. democratic presidents do (not) follow suit

• 1. The administrative state as a liberal, democratic project

Bureaucracy was largely built during the progressive era and the new deal/great society to regulate and redistribute, embodying liberal/democratic values of neutrality, expertise, fairness and collective problem-solving

• 2. Partisan polarization

• Democrats: state as instrument of public good

• Republicans: state as threat to freedom

• 3. Richard nixon also creates template for later republican presidents

• Fires agencies with loyalists

• Prevents career civil servants from performing their jobs to thwart programs he opposes

• 4. Legal foundation: UET

key components - removal power, unilateral directives

implications - maximalist interpretation of separation of powers, executive as final arbiter of law

• 5. The Reagan revolution

while Reagan advocated for a smaller, less intrusive federal government, he was willing to use strong, centralized executive power to achieve those anti-government

• 6. Democratic presidents do not follow suit (or do they) - bill clinton

expanded war powers and centralized power

• 6. Democratic presidents do not follow suit (or do they) - obama

avoids the phrase UET but defends actions on similar grounds through the “Take care” clause

how different are the democrats’ and republicans approaches to executive power?

Democrats do not follow suit on the legal foundation (UET) but they do on the institutional expansion, often expanding executive power in response to Republican moves

Unilateral powers

actions taken by a single party, such as a president, without the consent of other branches of government or parties

costs/risks of centralization

Risks WH overreach/scandals, reduced transparency 

costs/risks of politicization

responsiveness-competence tradeoff (quickness/loyalty vs skills)

, can backfire and many failures may not be noticed: declining quality of services, public health, workplace safety, the environment  

Executive orders

directive from the President

1. topic pertains to president’s authority via statute or Constitution

2. published in Federal register

3. OMB must report impact statement

Executive orders flaw

they can be overturned by next president, court, or congress 

Executive memoranda

Same as executive orders but not required to cite legal authority, not printed in Federal register (can be), OMB doesn’t have to report impact - Used more by presidents because less formal

Proclamations

typically ceremonial, deal with individuals

National security directives

Issued through the NSC to guide foreign and military policy

Signing statements

Declarations issued upon signing a bill into law

1. ceremonial

2. more powerful, controversial function that relates to the President's interpretation of the law

• 1. Ceremonial signing statements

Ceremonial in nature and may include commentary on the bill's intent

• 2. Presidents’ interpretation of a bill

look into unconstitutionality in bills, may later refuse to enforce that specific part

controversy of signing statements

Use of signing statements to disregard or refuse to implement parts of a law is controversial because it is similar to a line-item veto, which the Supreme Court has found to be unconstitutional. Signing statements are published in federal register

justification of signing statements

ensure that laws are faithfully executed (find which provisions of the law are unconstitutional, inefficient)

what can the president do without congress?

1. decision-making processes: centralization and politicization

2. executive orders

3. signing statements

4. regulatory rulemaking

• Regulatory rulemaking

Agencies hold this power, but president can use centralization, politicization, pressure, threat, persuasion to accomplish their goals indirectly

Executive privilege

the right of the President and other executive branch officials to withhold information from Congress, the courts, and the public to protect the confidentiality of internal deliberations

ex. Nixon tapes

Way to get past executive privilege

Up to congress (impeachment), courts, and people (elections) to decide if president takes executive privilege too far

Trump V. United States overview

• official actions taken within the president’s core constitutional powers are absolutely immune from criminal prosecution

• official actions that are in the outer perimeter of responsibilities receive a presumptive immunity

Core powers of president

Pardons, vetoes, commanding the military

outer perimeter

meeting or calling state legislature or election officials to urge them to reverse or delay results, pressuring vice president to reject electors, using the bully pulpit to promote false claims 

what does the outer perimeter not cover

Unofficial/private acts

Dividing official vs. unofficial conduct

courts may not inquire into the president’s motives and cannot look behind it to examine motive

presumption of immunity breach

acts were unofficial in nature or that the prosecution poses no threat to the separation of powers

Why is immunity necessary?

• Necessary if the president is to undertake bold, unhesitating action to behave forcefully or fearlessly and fairly

  • mansfield and Feb. 70

  • counterproductive to have all acts routinely subjected

Critique of Trump V. United States

fundamentally undermines the principle of executive accountability and places the President above the law through this ambiguous leeway. gives the president king-like powers, exactly what the founders sought to prevent

Defense of Trump V. United States 

If there was no type of immunity for official tasks, then every decision made by a president would be made under the looming threat of future criminal indictment. actions would be frozen, not making any progress, and the president wouldn’t perform the necessary duties of the office in times of emergency

Executive order examples

Abraham Lincoln's Emancipation Proclamation, TikTok's national security implications, and a controversial attempt to limit birthright citizenship

Ambivalence

powers slightly contradict each other, but you need to be both and being both makes you stronger 

plebiscitary argument to UET

The "worst combination" is when a president combines Unitary Executive Theory (maximum legal power) with a Plebiscitary Mandate (demagogue/justification from the people) to assert legal supremacy and democratic supremacy

UET Effectiveness

President being able to fire incompetent or disloyal heads of agencies could be good for the country, these people are accountable to someone

• Ex. FDA was incompetent or complicit with oxycontin and led to the opioid crisis

Cons to UET

Advocates say: if the founders wanted UET, then they wouldn’t have given Congress so much power over the executive branch through the necessary and proper clause

Effectiveness of C&B theory

Averts Despotism - no single branch gains absolute control

Forces Shared Governance - what founders intended

Enhances Accountability

Encourages Scrutiny