Requires a two-thirds vote or 67 Senators to convict a president.
Realistic chance of conviction occurs when:
The president's party is internally divided on the issue.
The opposing party is unified against the president.
Example: In 2019, during the impeachment trial of President Trump:
Only Senator Mitt Romney (R-UT) voted to convict from the Republican side.
All Democrat Senators voted to convict.
Politics of Impeachment: House
Impeachment Requirement: Only a simple majority vote is needed to impeach a president, making it primarily an intra-party issue.
Trump’s First Impeachment:
Occurred during a Democratic-controlled House.
Initially, only the left wing of the Democratic party supported impeachment.
Support broadened when the Ukraine story emerged, leading to agreement from more conservative members known as Blue Dogs.
Impeachment as a Political Act
Nature of Impeachment:
Impeachment is fundamentally a political act.
There is no objective definition of "high crimes" that triggers impeachment.
Fundamental Purpose:
Impeachment serves as a guarantee against presidential abuse of powers in significant ways.
Cited Reference: Barbara Jordan's 1974 speech highlights these themes.
Controversy: There are varied interpretations of what thresholds are necessary for impeachment.
Federalist 65: Hamilton’s View on Impeachment
Difficulty in Establishing a Court:
Impeachment trials require a well-constituted court, which is rare in an all-elected government.
Types of Offenses:
Offenses susceptible to impeachment stem from misconduct or violations of public trust, primarily pertaining to political matters.
Such prosecutions tend to agitate public passions, splitting society into factions.
The ultimate danger is that decisions may be influenced more by the political strength of parties than by actual guilt or innocence.
Federalist 69: Hamilton on Presidential Accountability
Impeachment Liability:
The president can be impeached and removed upon conviction for treason, bribery, or other high crimes and misdemeanors.
Post-impeachment, the president remains subject to ordinary legal prosecution.
Contrast with the British Monarchy:
The king’s status is inviolable with no constitutional accountability, unlike the U.S. president.
Constitutional Convention Insights on Impeachment
Opinions from Founding Fathers:
James Madison: The Impeachment Clause is essential to defend against negligence or perfidy by the president.
Elbridge Gerry: Good magistrates shouldn’t fear impeachment, while bad ones should.
George Mason: No individual should be above justice, hence impeachment's importance.
Benjamin Franklin: Preferred impeachment over historical practices of royal removal via death.
Impeachment: A Check Against the Executive
Congress’s Role in Impeachment:
Historically involved cases include Andrew Johnson, Bill Clinton, Richard Nixon, and Donald Trump.
Notably, Trump was acquitted in his impeachment trials.
The Limits of Presidential Power
Concerns of Power Abuse:
The framers were wary of executive power potentially infringing on liberty.
Checks and Balances Established:
Four-Year Term Limit: Ensures periodic evaluation of presidential performance.
Congressional Powers:
Impeachment and removal of the president.
The authority to reject presidential appointments.
The ability to deny funding to presidential initiatives.
Overrides of presidential vetoes.
Presidential Non-Enforcement of Laws
Mechanism of Non-Enforcement:
The president can refuse to implement laws enacted by Congress, which can impede legislative intent.
Example: President Obama suspended parts of the Affordable Care Act when implementation faced challenges.
Signing Statements in Executive Action
Definition:
Signing statements are announcements made by the president at the time of signing a law that explain his interpretation of the law.
Notable Example:
In 2014, President Obama signed the National Defense Authorization Act with a statement claiming the notification requirement before transferring detainees was unconstitutional.
Subsequently, five Taliban commanders were transferred to Qatar in exchange for Sgt. Bowe Bergdahl, with notice given only two days post-transfer.
Stopping Executive Orders
Congressional Authority:
Congress can legislate to overturn executive orders, but significant barriers exist:
A unified Congress supporting the president is unlikely to pass overturning legislation.
A Congress opposed to the president might succeed but face vetoes, making supermajorities necessary for overrides.
Divided Congress tends to face challenges in passing any legislation.
Judicial Oversight:
Courts may invalidate orders lacking constitutional or statutory backing.
Obama’s Immigration Orders
Immigration Reform Efforts:
Despite multiple attempts, immigration reform bills under both House and Senate failed to clear legislative hurdles, leading President Obama to act.
Deferred Action for Childhood Arrivals (DACA):
Provided work permits and exemptions from deportation for undocumented minors who entered before age 16.
Initially overturned by Trump's executive order but had legal stays from federal judges.
Deferred Action for Parents of Americans (DAPA):
Aimed to provide relief to parents of DACA recipients, faced legal challenges leading to judicial rulings against Obama’s initiative.
Notable Executive Orders Throughout History
Historical Examples:
Emancipation Proclamation (Lincoln)
Japanese Internment (FDR)
Military Desegregation (Truman)
Affirmative Action (Johnson)
EPA Creation (Nixon)
Regulatory Analysis Initiatives (Reagan)
“Enhanced Interrogation Techniques” (Bush)
Relaxation of Immigration Enforcement (Biden)
Cessation of DEI Programs (Trump)
The Administrative Strategy: Executive Orders
Definition of Executive Order:
Presidential directives aiming to manage bureaucracy and enforce laws bypassing legislative approval.
Such orders gain legal status until overturned by subsequent presidents or reversed by court rulings.
Bipartisan Usage:
Both Democrats and Republicans employ executive orders.
The Administrative Strategy: Expansion of Executive Office
Growth of Executive Office of the President (EOP):
Established in 1939, the EOP has expanded significantly with various staff members working closely for the president, enhancing administrative capabilities.
Responsibilities include information gathering, program planning, strategy communication, and executive branch supervision.
The Administrative Strategy: Regulatory Review Process
Role of the OMB and OIRA:
The Office of Management and Budget (OMB) supervises regulatory review processes performed by the Office of Information and Regulatory Affairs (OIRA).
Published administrative rules in the Code of Federal Regulations become enforceable by law via federal courts.
The Administrative Strategy: Executive Office Composition
Staff Structure:
The EOP has expanded from a few assistants to hundreds of individuals, improving the president's capabilities.
Core functions include gathering pertinent information, strategizing policies, and regulating executive operations.
Supreme Court's Role in Executive Orders
Judicial Involvement:
The Supreme Court often intervenes regarding the legality and execution of executive orders, serving as a potential avenue for legislative constraints post-implementation.
Congressional Dynamics with the Executive Branch
Congressional Structure:
The contrast between a single president versus a bicameral Congress, complicating the procedural decision-making.
Political Dynamics:
Presidents lead their party which may hesitate to challenge their authority for fear of undermining party unity or political capital.
Sources of Unilateral Presidential Powers
Discretionary Authority:
Incoming administrations may pause publication of the Federal Register to review outgoing regulation from previous presidents.
Presidents have the prerogative to set enforcement priorities for statutory laws, leading to possible non-compliance with constitutional obligations if discretion is excessively applied.
National security considerations may also shape the need for selective law enforcement.
Executive Unilateralism - Advantages and Disadvantages
Advantages:
Enables swift action without need for congressional approval, having legal force until overruled.
Disadvantages:
Easily repealed by subsequent administrations of opposing parties, leading to instability of policy.
The Source of Party Power in Relation to the Presidency
Challenges for the President’s Party:
Party members struggle to criticize the president for fear that it might negatively impact their political agendas.
Concerns over re-election and primary challenges often lead to party members supporting the president even when they disagree.
Role of the Presidency as Ideologue-in-Chief
Influence on Party Doctrine:
Presidents shape party positions on critical issues (e.g., Ronald Reagan on abortion, Barack Obama on same-sex marriage).
Current Influences: Trump's stance on free trade, immigration, and NATO.
The Presidency as Negotiator-in-Chief
Legislative Influence:
Though unable to introduce legislation directly, the president plays a significant role in shaping the party's stance on bills, including details.
Legislative Examples:
Obama's Affordable Care Act and forthcoming immigration legislation opposed by Trump.
The Presidency as an Institution: Political Party Dynamics
Presidential Leverage:
Presidents utilize their political party to advance nominations or policy agendas amidst opposition (e.g., Trump and Biden).
The president cannot fully control their party.
Example: Trump struggled to repeal Obamacare despite a Republican majority but succeeded in tax reform.
Agenda Setting Power of the Presidency
Definition:
Agenda-setting is the ability to determine what issues are prioritized within national policy discussions.
Example Initiatives: Obama’s focus on health care, Biden’s emphasis on climate change, and Trump’s focus on immigration and foreign trade.
Contemporary Bases of Presidential Power: Going Public
Shift in Public Engagement:
Past presidents tended to refrain from public commentary on policies.
Modern presidents utilize public platforms, including social media, to mobilize support, exemplified by Donald Trump.
The Vice-Presidency as an Institution
Primary Functions:
Primary roles include succeeding the president and breaking ties in the Senate.
Electoral Influence:
Vice presidents are often strategically selected to enhance electoral chances through regional, demographic, or ideologic balance.
The Executive Office of the President (EOP)
Definition and Structure:
Established in 1939, the EOP includes major permanent agencies performing specific managerial functions for the president, including:
Office of Management and Budget (OMB): Reviews executive budget proposals.
Council of Economic Advisers (CEA): Analyzes economic trends and advises the president.
National Security Council: Provides national security advice from designated cabinet officials.
The White House Staff's Role
Composition and Functions:
Comprised mainly of analysts and advisers with various levels of seniority. Titles include:
"Adviser to the President"
"Assistant to the President"
"Deputy Assistant"
"Special Assistant"
Staff members are generally closely aligned with the president, influencing day-to-day operations.
Cabinet Composition and Functions
Nature of the Cabinet:
The Cabinet comprises secretaries and major department administrators, yet lacks constitutional status and decision-making authority as a collective group.
Senate approval is essential for appointments of cabinet secretaries.
Legal Authority in Trade and Trade War Context
Legal Framework for Tariffs and Trade Actions:
Trading with the Enemy Act of 1917 and subsequent acts provide the president legal backing for implementing tariffs during conflict situations.
National Security Clauses: Utilizing Section 232 of the Trade Expansion Act for national security assertions in trade policies.
Delegated Powers to the Executive Branch
Delegation from Congress:
Congress often delegates authority to executive agencies to execute laws due to its inability to manage all enacted programs directly.
Agencies are tasked with setting detailed methods for achieving legislative goals, as seen in reliance on the Department of Health and Human Services for managing the Affordable Care Act.
The Power of Anticipation in Legislative Strategy
Vetoes and Game Theory:
Veto powers can create anticipation that influences legislative matters, even if not used, supporting the analogy of "gun on the hip".
The Veto Process Overview
Veto Mechanism:
Flowchart illustrating the presidential veto process from bill passage through Congress to potential override outcomes, emphasizing the role of special assistants, agencies, and key interests.
Legislative Power of the Presidency
Role in Legislative Process:
The president plays a vital informative role in Congress’ operations, notably through the State of the Union address, establishing policy priorities and submitting annual budgets.
Presidents have the authority to veto legislation, which Congress can override with a two-thirds majority.
Pockets Veto: An automatic veto occurs if the president refrains from signing during the last ten days of the legislative session.
President’s Inherent Powers
Nature of Inherent Powers:
Powers inferred from the Constitution, especially invoked during wartime or emergencies, such as sending troops without prior congressional approval.
Presidents assert constitutional rights for managing foreign relations and handling domestic crises.
Expressed Powers of the Presidency
Categories of Expressed Powers:
Defined in Article II, encompassing Military, Judicial, Diplomatic, Executive, and Legislative powers.
Electoral College Mechanics
Electoral Framework:
Presidents are elected by the Electoral College rather than through direct popular votes, with the majority requirement of 270 electoral votes for victory.
Variability in Electoral Outcomes: Note instances where a candidate wins the presidency without securing the majority of the popular vote, including examples from 2024 and previous elections.
Presidential Election Eligibility and Succession
Criteria for Eligibility:
Must be a natural-born citizen and have served no more than two, four-year terms.
Elections occur in early November, but presidential terms do not begin until late January.
The Growth of Presidential Influence
Historical Changes:
Originally, the founders viewed Congress as a leading body, but over time, presidential power has expanded, resulting in a shift in dominance.
Mechanisms: The Power to Persuade and Executive Unilateralism are central to extending presidential influence and authority.
Big Picture Considerations of the Presidency
Distinction Between Individuals and Institutions:
The presidency has evolved, often diverging from the original intentions of the framers.
Described as an "imperial presidency," increasingly powerful yet constitutionally constrained.
Continuous changes in the role of presidency build on each precedent set by prior leaders.