Powers of the Presidency & Checks

Formal vs. Informal Powers

  • Powers of the President are outlined in Article II of the Constitution, detailing the structure and function of the executive branch.

  • Formal powers are specifically named in the Constitution, providing a clear legal basis for presidential actions. These are often subject to checks and balances by other branches.

  • Informal powers are inherent to the office of the President but not explicitly mentioned in the Constitution. These powers often evolve through practice and precedent, giving the President more flexibility in certain situations.

Executive Powers

  • Execute all laws, ensuring that legislative mandates are carried out effectively across the nation. This includes overseeing federal agencies and departments.

  • Appoint Executive Department officials, such as cabinet members and agency heads, who help the President manage and implement policies. These appointments require Senate confirmation.

  • Grant Executive Orders, which are directives issued by the President that manage operations of the federal government. They have the force of law but are limited to the executive branch.

Checks on Executive Powers

  • Senate confirmation of appointments ensures that the President’s choices for key positions are scrutinized and approved by the legislative branch.

  • SCOTUS can rule executive orders unconstitutional, providing a judicial check on the President’s executive actions and ensuring they do not exceed constitutional limits.

Legislative Powers

  • State of the Union address, where the President reports to Congress and the nation on the condition of the country and outlines legislative priorities.

  • Convene both houses of Congress, allowing the President to call special sessions when critical issues need immediate attention.

  • Sign or veto legislation, enabling the President to either approve bills into law or reject them. A veto can be overridden by a two-thirds vote in both houses of Congress.

  • Attach signing statements to legislation, expressing the President’s interpretation of a law, which can guide its implementation or raise constitutional concerns.

Checks on Legislative Powers

  • Congress can ignore policy suggestions made during the State of the Union Address (SUA), limiting the President’s direct influence on the legislative agenda.

  • Congress can override a veto with a 2/3 majority in both houses, checking the President’s power to block legislation.

  • SCOTUS can rule a bill signed into law unconstitutional, providing a judicial check on both the President and Congress.

Judicial Powers

  • Appoint federal judges, including Supreme Court justices, influencing the direction of the judiciary for decades.

  • Grant amnesty or pardons, offering forgiveness for federal crimes, which can be controversial and often involves considerations of justice and public interest.

  • Reprieve, pardon, or commute federal sentences, providing various forms of relief from punishment, balancing justice with mercy.

Checks on Judicial Powers

  • Senate confirmation of judicial appointments, ensuring that the President’s judicial nominees are thoroughly vetted and approved by the legislative branch.

Foreign Policy Powers

  • Commander in Chief, giving the President supreme command and control over the military, allowing for quick responses to security threats.

  • Make treaties, formal agreements with other countries, though these require Senate ratification.

  • Receive ambassadors, formally recognizing foreign governments and facilitating diplomatic relations.

  • Appoint ambassadors, representing the U.S. in foreign countries and promoting U.S. interests.

  • Make executive agreements, agreements with foreign heads of state that do not require Senate ratification, offering a swifter but potentially less durable form of international cooperation.

Checks on Foreign Policy Powers

  • Congress declares war and approves the budget for the Department of Defense, limiting the President’s ability to engage in prolonged military actions without legislative support.

  • Senate ratifies treaties with a 2/3 vote, providing a check on the President’s treaty-making power.

  • Senate confirms ambassadors, ensuring that the President’s diplomatic appointees are qualified and acceptable to the legislative branch.

Formal Powers of the President (Review)

  • Lead military, directing the armed forces in both peace and war.

  • Grant pardons, offering clemency and forgiveness for federal offenses.

  • Veto legislation, blocking bills passed by Congress.

  • Recommend legislation, proposing laws and policies for Congress to consider.

  • Make appointments (judges, ambassadors, bureaucrats, etc.), filling key positions in the government.

  • Convene or adjourn Congress, calling special sessions or ending regular sessions.

  • Receive ambassadors, formally acknowledging foreign governments.

  • Negotiate treaties, crafting agreements with other nations.

  • Deliver the State of the Union address, outlining the President’s agenda and assessing the state of the nation.

Chief Legislator

  • Informal: Persuasion - influence, bargaining, advocacy to get Congresspeople to vote for/against a bill, shaping legislative outcomes through negotiation and compromise.

  • Formal: Suggest legislation - State of the Union, public appearances, etc., setting the legislative agenda and priorities.

  • Veto - threaten, veto, pocket veto, wielding the power to reject legislation and influence its content.

Commander in Chief

  • Informal: Commit troops to military engagements; AUMFs (Authorization for Use of Military Force), deploying military forces and engaging in conflicts, often with congressional authorization.

  • President’s military power has greatly expanded in the 20th century - elastic clause for military use? The interpretation of presidential war powers has broadened significantly.

  • Formal: Ask Congress to declare war, seeking formal congressional approval for military actions.

Chief Diplomat

  • Informal: Executive agreements - doesn’t require congressional approval, doesn’t continue into next presidency, only as powerful as the leaders’ commitment to it, allowing for quick but potentially temporary international accords.

  • "Big Stick Policy" - Panama Canal + Teddy Roosevelt, using military strength to influence foreign policy decisions.

  • Jimmy Carter - returning the Panama Canal, demonstrating diplomatic efforts to improve international relations.

  • Formal: Negotiate treaties - to be approved by the Senate, establishing long-term, binding agreements with other nations.

Chief Executive and Administrator

  • Informal: Executive order - weight of law, cannot be about anything that Congress has sole jurisdiction over (taxes, etc), directing federal agencies and setting policy within the executive branch.

  • FDR - Executive Order 9066 (Japanese Internment), a controversial use of executive power.

  • Truman - ordered integration of the military, advancing civil rights through executive action.

  • Trump - Travel ban, sparking legal and political debates over executive authority.

  • Signing statements, interpreting legislation and guiding its implementation.

  • Executive privilege, protecting confidential White House communications.

  • U.S. v Nixon (1974), limiting executive privilege and affirming the rule of law.

  • Trump impeachment hearings, highlighting the checks on presidential power.

  • Formal: Head of Bureaucracy, make appointments, overseeing the federal bureaucracy and appointing key officials.

The President’s Team

  • Being President is hard, and decisions are important, so many positions & agencies assist the president in making these decisions. The President relies on a vast array of advisors and agencies.

  • Vice President - historically not a powerful role, assistant to the president; Cheney and Biden were highly influential VPs; Pence? Harris? The Vice President’s role has evolved over time.

  • Purpose of VP: Campaign, balance ticket, fundraise, 25th amendment, assisting the President in various capacities.

  • The Cabinet: 15 secretaries - advise president and run governmental agencies, leading the major departments of the executive branch.

  • Secretaries - diversity (gender, age, geography, ethnicity, race) can help president achieve their agenda ---tokenism? –Some patronage still applies. Prioritizing diversity can lead to more inclusive representation.

  • NOT mandated by Constitution. The Cabinet's structure and role are not constitutionally defined.

  • Expanded over time --Washington: 3 Today: 15. The Cabinet has grown significantly with the expansion of the federal government.

  • Modern presidents do not rely on the cabinet to make policy because their White House staffs offer most of the advisory support they need. Modern Presidents often prefer advice from White House staff.

Departments to Know

  • State Department - promote foreign policy around the globe, ambassadors (top diplomat), managing international relations.

  • Defense Department - The Pentagon, Secretary of Defense, Joint Chiefs of Staff, overseeing the military and national security.

  • Other agencies - FBI, IRS, CIA, Postal Service, fulfilling various governmental functions.

President’s Staff

  • White House staff – (WEST WING!) Chief of Staff, Communications Director, Press Secretary –No Senate confirmation; loyal to POTUS, providing direct support to the President without Senate oversight.

  • The Executive Office of the President –important inner circle of advisors –staffed by persons responsible to the president alone. They offer specialized advice and support.

  • National Security Council, the Council of Economic Advisors, and the Office of Management and Budget, advising on national security, economic policy, and budget matters.

Presidential Appointments

  • Cabinet and other gov’t officials need senate confirmation. This ensures a balance of power.

  • 65,000 military leaders and about 2,000 civilian officials - en bloc, allowing for streamlined approval of certain groups.

  • Recess appointments, filling vacancies when the Senate is not in session.

  • Largely approved by the senate, only rejected 9 department secretaries by vote. Most nominees are confirmed, but some face significant opposition.

  • Senate Standoffs: Tower for Sec. Defense in 1989, and DeVos for Sec. Education in 2017. These nominations faced intense scrutiny and opposition.

  • Serve at the pleasure of president except for heads of regulatory agencies (need cause). Most appointees can be removed at will, except for those in independent agencies.

  • Federal judges : appointment process can be contentious, long lasting impact of judges serving life terms. These appointments shape the judiciary for decades.

Succession and Impeachment

  • Presidential Succession Act of 1947, establishing the line of succession.

  • POTUS or VEEP unable to “discharge the powers and duties of the office”. This covers situations of disability or incapacitation.

  • Order of Succession:-

    • VEEP

    • Speaker of the House of Representatives

    • President Pro Tempore of the Senate

    • Cabinet positions in order created (chronological)

West Wing Episode Reviews (Examples of Presidential Roles)

  • Head of State - the apolitical, unifying role of the president as symbolic representation of the whole country. Receiving the president of Indonesia at the state dinner, exemplifying ceremonial duties.

  • Commander in Chief - the president's role as the top officer of the country's military. Talking to navy when the fleet is in danger during the hurricane, showcasing military leadership.

  • Chief Executive - President oversees the vast powers of the US government (oversees bureaucracy, makes appointments, etc.). As chief executive, the President is called upon to make the final decisions in all public policy matters facing the nation. Making decision for how the FBI should proceed with the hostage situation, illustrating executive decision-making.

  • Chief Diplomat - top authority in foreign policy. Appointing ambassadors, receiving foreign guests, and designing treaties with other nations is a fundamental part of a president’s term. Meeting with the Indonesian president (press events), demonstrating diplomatic engagement.

  • Economic Manager - President doesn’t have direct control over the economy, but it’s expected that they will use their power to help it run smoothly (advocate for policy changes, head of bureaucracy). Negotiating trade dispute between truckers’ union and employer, managing economic issues.

  • Head of Party - informal power, oversees electoral strategies, issues, agendas, and public policy priorities. The President also plays a major role in raising campaign money for candidates from their party. Important donor is invited to state dinner, executive advisers expected to schmooze, illustrating party leadership.

  • What 3 specific Constitutional powers does the President threaten to use if the Truckers Union and management don’t settle the strike by midnight - (1) Use executive power to nationalize the trucking industry -call congress into session (2) and make recommendations (3) to pass legislation to draft truckers into military service, demonstrating broad presidential power tools.

Qualifications for President

  • At least 35 years old.

  • Live in the US for 14 years.

  • Natural-born citizen.

  • Defacto qualifications? Unwritten or informal requirements, such as experience or political background.

Types of Presidency

  • Traditional Presidency (relatively weak) - founding to 1900s. Characterized by limited executive power.

  • Modern Presidency - powerful, present, communicate with the public - 1930s to present. Reflecting increased expectations and engagement.

  • Imperial Presidency - very strong, may ignore Congress, Constitution. Showing potential overreach of power.

  • Examples: Andrew Jackson, Abraham Lincoln, Woodrow Wilson, Teddy Roosevelt, FDR. Presidents who expanded the scope of the office.

Extraordinary Powers

  • John Adams and the Alien and Sedition Acts (punishment of anti-government speech), illustrating early uses of controversial powers.

  • Abraham Lincoln and the suspension of habeas corpus (the right to challenge one’s detention by the government), demonstrating wartime authority.

  • Woodrow Wilson and his support of the prosecution of those who criticized the war effort (WWI), restricting civil liberties during conflict.

  • Franklin Roosevelt and his detention of Japanese-Americans, a controversial wartime measure.

  • Lyndon Johnson and his approval of domestic wiretapping on citizens (and some congresspersons), raising concerns about privacy.

  • Richard Nixon and his approval of domestic wiretapping of so-called "subversives", leading to scandal and resignation.

  • George W. Bush and his approval of domestic wiretapping of those suspected of terrorist ties and enhanced interrogation techniques, in response to 9/11.

  • Barack Obama and the use of drones within non-warring nations to pursue terrorists, sparking debate over extrajudicial actions.

  • Donald Trump declared a State of Emergency to use DoD funds in order to build a wall to stop the flow of illegal immigration. 8 miles built. Demonstrating the use of emergency powers.

Presidency and the Press

  • Presidents and media are often adversaries due to different goals. This creates tension and scrutiny.

  • Media need stories; presidents want to convey their messages to the public. This leads to strategic communication efforts.

  • Many people in the White House deal with the media, but the press secretary is the main contact person. The press secretary manages the flow of information.

  • Press conferences are the best-known direct interaction of president and media. This provides opportunities for questions and answers.

  • News coverage of presidents has become more negative since Nixon. This reflects changing media dynamics.

President and Public Opinion

  • Can expand or constrain presidential power. Public support is a vital asset or limitation.

  • Going public – a strategy where the president promotes himself and his policies in Washington by appealing directly to the people for support. This involves direct communication with the public.

  • One of the greatest tools in mobilizing other branches to support the agenda. Public opinion can influence Congress and other actors.

  • Bully pulpit – appeal to the public to pressure other branches of government to support their policies. This leverages public support to achieve policy goals.

  • State of the Union; press events, Twitter, illustrating various means of public engagement.

Succession and Impeachment

  • Vice-President succeeds if the president leaves office due to death, resignation, or removal. This ensures continuity of leadership.

  • Impeachment (indictment):- Investigated by the House, and if impeached – Treason, bribery, high crimes, and misdemeanors.

    • Tried by the Senate with the Chief Justice presiding.

    • A. Johnson, Clinton, Trump - none convicted. No president has been successfully removed from office through impeachment.

Discretionary Authority

  • Administrative Procedure Act - APA (1946) - provides guidance on how bureaucracy can set rules (public and transparent). This promotes accountability in rulemaking.

  • Federal Register, publishing proposed and final regulations.

  • Level of delegated authority can vary over time/across agencies. This reflects changing political priorities.

  • Maybe politically expedient to have