We The People - Chapter 11 Notes

Necessary and Proper Clause

Necessary and Proper Clause

 The creation or claiming of powers necessary and proper to carry out expressed powers.

 Meant to apply to both Congress and the President in order to influence both to work together

 Some expressed powers are broad and ambiguous, so Congress uses the clause to claim implied power in order to aid in the carrying out of expressed powers

-However, Presidents have used the clause to their own advantage without consulting Congress by combining it with the Faithfully Executed Clause

 Expressed powers must be faithfully executed. Expressed powers can only be

Executive Power

Power vested in the President of the United States of America, as outlined in the Constitution, Article II, Clause I.

How are presidents elected and why?

By Direct Popular Vote and Electoral College

*A President completely reliant on Direct Popular Vote may lead to a more independent President, which could threaten democracy

*It deters the concept known as ‘the tyranny of the states’ in which just a few states with much of the population select the President while less populous states are left out

*The Electoral College serves as an Indirect Method of selecting the President

*In the case of a tie or non-majority in electoral college, Congress selects President

Expressed Power

Specific powers explicitly stated in the Constitution, such as making treaties and appointing officials.

Examples: Presidents Make Treaties, Grant Pardons, Receive Ambassadors, Nominate Judges and other officials

Implied Power

Powers not explicitly written in the Constitution but necessary to carry out expressed powers, governed by the Necessary and Proper Clause.

Military power as a foreing policy

*Commander-in-Chief = highest military authority. Military power is greatest power a President has.

*President heads Defense Department, CIA, NSA, NSC, FBI.

*Presidents increasingly lead nation to war without being “called into actual service” by Congress.

*Military operations are rarely called wars and Congress rarely ever declares war

Military Power → War Powers Resolution

Public wanted change in Presidents ability to lead nation into military operations due to Vietnam War.

*Solution = Congress passed the 1973 War Powers Resolution (known as War Powers Act).

War Powers Resolution: 48 Hour Notice

equires a 48 Hour Notice by President to Congress of the sending of military forces anywhere in the world

War Powers Resolution: 60 Day Withdrawal

Congress does not approve of operation within 60 days, President must end operation and withdraw military forces

*Reality – Presidents always ignore the resolution and Congress simply approves a budget for the operation on the back-end

Military power in the Domestic Sphere (in the US)

 National Emergency (see text)

 Judicial

 Example: Constitution, Article II, Section 2: . . ., he (President) shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment ii.

-Pardons and Reprieves (Amnesty)

1. Ford pardoned Nixon – 1974 (Nixon was not impeached, he resigned)

2. Johnson gave amnesty to all southerners after the Civil War in 1868 (forgave them and allowed them to become American citizens again)

Diplomatic Power

Diplomatic Power refers to a country's ability to influence other nations through negotiations, alliances, and diplomacy.

He shall have Power by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur

President is Head of State: What does this mean?

 President is the Chief Representative in relations with other nations – How?

 President leads in the making of Foreign Policy

 President takes the lead in Treaty Making, but Senate must approve treaties with 2/3 vote. Presidents often bypass the Senate by reformulating treaties into Executive Orders.

Executive Order

An order or directive issued by the head of the executive branch of government (President), which becomes law

 Executive orders can be overridden if the Senate does not pass funding for the order or passes legislation, which conflicts with the order

 President can still veto the legislation, but Senate can override the veto with a 2/3 vote

Faithfully Executed Clause

A clause in the Constitution (Article II, Section 3) that mandates the President to ensure that the laws are faithfully executed.

• Expressed powers and deligated poweres must be faithfully executed

Appointment Power

The authority of the President (Constitution, Article II, Section 2) to nominate and appoint Ambassadors, public Ministers, Judges, and other Officers of the United States with the advice and consent of the Senate.

• but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments

• President Appoints Executive Officers, Ambassadors and Federal Judges

• Senate approves with simple majority (51 votes)

• Appointees are loyal to President

Legislative Power

The power of the President (Constitution, Article II, Section 2) to provide information to Congress, recommend measures, propose legislation, and use veto power to influence Congress.

• President has Legislative Initiative (creates much legislation and presses Congress to pass)

• President proposes much legislation in the State of the Union Address o Remember: President proposes and Congress disposes

Top 5 Executive Order Creators

*Franklin Roosevelt – 3522

*Woodrow Wilson – 1803

*Calvin Coolidge – 1203

*Theodore Roosevelt – 1081

*Herbert Hoover – 968

Executive Orders

Orders issued by the President to manage the operations of the federal government, create laws, and bypass Congress in specific situations.

Examples of Executive Orders

*Abraham Lincoln – Emancipation Proclamation was Executive Order (freed the slaves)

*Franklin Delano Roosevelt – Created Works Progress Administration to create jobs during the Great Depression

*Richard M. Nixon – Created Environmental Protection Agency

*William J. Clinton – Created Grand Staircase Escalante

Delegated Powers

Powers that Congress has granted to the President, which have increased over time, especially in foreign policy matters.

Presidential Cabinet

1. Sixteen Departments 2. All Department heads referred to as ‘Secretaries’ except the Attorney General 3. Example:

a. Department = Department of State

b. Head of Department = Secretary of State

Cabinet Level Officers – Also serve the President

a. Officers are the same level as the Cabinet and attend Cabinet Meetings, but are officially not members of the Cabinet

b. Officers are considered part of the White House Staf

The White House Staff

1. Made up of Analysts and Advisors 2. Named the Executive Office of the President – EOP a. Formed in 1939 / Currently 1500 – 2000 workers b. Performs specific tasks for the President c. Examples: d. National Security Council NSC e. Office of Management and Budget

Vice President

1. “splendid nothingness” – Thomas Jefferson

2. Two functions

a. Succeed President in case of President’s death.

b. Presides over the Senate and can break a tie in voting in the Senate.

c. Vice Presidents have taken a larger role from time to time.

f. Vice President Dick Cheney (2001-2009) took a large role in helping to plan War on Terrorism and Iraq War.

Presidential Power

1. Power in Domestic and Foreign Policy has Risen and Fallen over the last 230 years

2. Has generally been on the increase

3. More of an increase in Foreign Policy than Domestic Policy

The Three Types of Presidents

-Imperial President

-Imperiled President

-Heroic President

Imperial President

a. Assumes much power in the realm of foreign policy

b. Can assume much power in the realm of domestic policy, but usually leaves much domestic power with Congress

d. When opportunity (war, depression, recession, etc) presents a President with the ability to assume great power they rarely turn it down. Congress and others oppose that President at their peril as they don’t want to be seen in a bad light.

e. Examples:

f. FDR (1932-1945) became President during Great Depression and assumed great power in domestic policy to end it.

• Created and pushed much legislation which commenced the National Recovery Act and Social Security Administration among other things.

• FDR assumed great power in foreign policy because of World War II.

• Before the bombing of Pearl Harbor foreign policy power was largely assumed by Congress.

G. Ever since WWII the President has kept and assumed even more foreign policy power. For example in war making and treaty approval. Presidents routinely send military forces into conflict without a Congressional declaration of war and the War Powers Act did not actually fix this problem.

h. Presidents routinely ignore the Senate treaty approval process by placing treaties within Executive Orders or Signing Statements.

i. Richard Nixon (1968-1974) was an imperial President due to opening relations with China, ending the Vietnam War and opening détente (peace) with the Soviet Union which led to missile reductions among other things.

Ronald Reagan (1980-1988) assumed great foreign policy power during the Cold War.

George W Bush (2000-2008) assumed great foreign and domestic power due to the War on Terrorism.

Went to war in two nations, detained and held terror suspects on foreign soil, domestic wiretapping (roving wiretaps), habeas corpus and due process suspended by Patriot Act, etc, etc.

FDR

Franklin D. Roosevelt, who served as President of the United States from 1932 to 1945, during the Great Depression and World War II, assuming significant power in both domestic and foreign policy.

National Recovery Act

Legislation pushed by FDR as part of his New Deal policies to address the economic challenges of the Great Depression.

Social Security Administration

An agency created by FDR to provide financial assistance to the elderly, disabled, and unemployed through social security benefits.

War Powers Act

Legislation intended to limit the President's ability to commit the United States to armed conflicts without the approval of Congress.

Imperial President- Short Answer

A term used to describe a President who assumes significant power and authority, often expanding the executive branch's influence beyond traditional limits.

Imperiled President

a. Richard Nixon became an imperiled (troubled / in trouble) President when the Watergate Scandal became public and it became obvious that he engaged in bribery, payoffs, domestic wiretapping and spying, break-ins and robbery.

• The agencies who were supposed to be making sure this type of behavior did not happen or at least make sure they did not engage in it were also compromised (FBI and CIA).

b. Jimmy Carter (1976-1980) came into office when the US was suffering from the Nixon scandal, inflation and unemployment.

• During his Presidency the Arab nations of OPEC embargoed the US for American support of Israel causing am enormous rise in gas prices as well as gas shortages.

• Inflation and unemployment grew worse and even worsened more when the Federal Reserve raised interest rates to 20 percent.

• Iran seized the US embassy in Tehran and held American hostages for almost a year.

• Carter was very bad at delegating and coming to a decision on anything which imperiled his Presidency almost from the beginning.

c. Reagan’s Presidency was imperiled by 1985 when it became public that his administration had engaged in illegal arms sales and to Iran and quasi- laundered the money to Nicaraguan rebels (contras).

• However he survived this scandal and by the time he left office was considered one of the greater Presidents.

d. Bush (W) was imperiled by 2005-2006 due to the endless Iraq War, the Taliban resurgence in Afghanistan, the poor economy, the Katrina disaster (FEMA- Brown) Attorney General firings and certainly the scandals of the Republican Congress didn’t help.

Issues of Presidential Power: Clauses of Concern

a. How Presidents claim vast war-making powers

b. United States Constitution

– Clauses of Concern v. Necessary and Proper Clause

– Article I, Section 8, Clause 18 w. Faithfully Executed Clause

– Article II, Section 3 x. Commander-in-Chief Clause

– Article II, Clause I c. War-making

d. The power to make war is the greatest power

e. The greatest threats to individual liberty happen during war

f. The US has been in a constant state of war or war readiness since World War II

Issues of Presidential Power: How do Presidents claim vast war-making powers? (remember: much war-making power is implied power)

a. Presidents treat the Commander-in-Chief Clause (C in C) as an expressed power – without a Congressional need to call the President into service

b. According to the C in C Clause, Congress must call the President into service

Congress → President → Military

c. Presidents invoke the Faithfully Executed Clause in order to claim the Faithfull Execution of the C in C Clause

d. Presidents invoke the Necessary and Proper Clause in order to carry out the Faithfully Executed Clause

e. How can a President Faithfully Execute his powers (expressed C in C Clause) without being able to do whatever may be Necessary and Proper (implied powers)?

Ex/ Bush and Obama

1. War on Terrorism and USA Patriot Act 2. Roving Wire Taps on citizens (and foreign nationals and leaders in other nations)

3. Indefinite detention of suspects without Due Process o Unprecedented expansion of US military power around the world

b. member: Congress allows the expansion of Presidential power. What this

Issues of Presidential Power – Presidents and Scandals

1. Much questionable policy is excused under the umbrella of national security

• The President oversees the vast Bureaucracy

• The bureaucracy carries out and also creates policy used in the US and outside the US

• The CIA is a bureaucracy that carried out and also created questionable policy in the 1980s

Issues of Presidential Power – Presidents and Scandals: Reagan and the Iran- Contra Scandal

a. Reagan’s Presidency was imperiled by 1985 when it became public that his administration had engaged in illegal arms sales to Iran

b. The CIA quasi-laundered the money from the sales through Panamanian banks

c. Some of the money was then used to fund Nicaraguan rebels (contras) fighting against the Soviet backed government

d. The CIA used the money to fund other such operations in Latin America and elsewhere (Afghanistan, Angola, etc)

f. Eventually the Iran / Contra operation is discovered and it leads Congress to knowledge of CIA operations involving drugs (cocaine)

 The CIA uses money attained from illicit means to fund its black operations (black ops) around the world

 If the CIA uses tax dollars to fund such operations, Congress and the people have a right to know about the money and the operations

 The Nicaraguan rebel leaders were used as middle-men in the transfer of Cocaine from Bolivia via Columbia to the United States. Some cocaine comes from Nicaragua, but most comes from Bolivia and Columbia

 Independent pilots loosely contracted by the CIA or CIA front companies fly to Nicaragua

o Pilots pick up the cocaine and fly back

o Some pilots bring bulk military grade weapons to Nicaragua

o Some pilots fly US government registered planes

• National Forest Service scandal

Bolivia → Columbia → Nicaraguan Rebels → United States

g. Congress investigated and uncovered the scandal (Kerry Committee-US Senate)

h. Reagan survived this scandal and by the time he left office was considered one of the greater Presidents

Watergate Scandal

A political scandal during Richard Nixon's presidency involving illegal activities such as bribery, wiretapping, and spying, leading to his resignation.

Iran-Contra Scandal

A political scandal during Ronald Reagan's presidency involving illegal arms sales to Iran and the diversion of funds to Nicaraguan rebels, carried out with the involvement of the CIA.

Commander-in-Chief Clause

A constitutional provision in Article II, Section 2, Clause 1, designating the President as the commander of the nation's armed forces.

USA Patriot Act

Legislation passed in response to the 9/11 terrorist attacks, expanding the government's surveillance powers and authority to combat terrorism.

Iran/Contra Operation

A political scandal in the United States during the 1980s where officials secretly facilitated the sale of arms to Iran, with the profits being used to fund the Contras in Nicaragua.

Black Operations (Black Ops)

Covert operations carried out by a government, typically involving activities that are not officially acknowledged.

Nicaraguan Rebels

Anti-Sandinista rebels in Nicaragua who were supported by the United States during the 1980s.

Dark Alliance

A controversial news article by Gary Webb that linked the CIA and Nicaraguan Contras to the crack cocaine epidemic in Los Angeles in the 1980s.

Gary Webb

An investigative journalist known for his reporting on the CIA's involvement in drug trafficking and the crack cocaine epidemic in the United States. He killed himself after long ridicule.

Contra Drug Trafficking

The involvement of Nicaraguan Contras in drug trafficking, particularly cocaine, during the 1980s.

What is a heroic president

A heroic president is a leader who demonstrates courage, integrity, and selflessness in the face of challenges and adversity.

What is a heroic president?