psc notes 5

Presidential Roles and Constitutional Powers

Presidents have many roles, each associated with specific constitutional powers (found in the Constitution). These powers are immune from politics (e.g., popularity, health, war).

  1. Chief Legislator

    • Constitutional Power: Veto bills (Article 1).

    • Constitutional Power: Make legislative recommendations (e.g., State of the Union address, where the President suggests legislative priorities to Congress).

  2. Chief Executive (enforcing the law)

    • Constitutional Power: Make presidential appointments (e.g., Supreme Court, Cabinet, executive agencies like EPA, FTC).

    • Constitutional Power: Execute the laws and oversee the executive branch, delegating power to ensure laws are executed.

  3. Commander-in-Chief

    • Constitutional Power: Military command (Article 2).

  4. Chief Diplomat (dealing with other countries)

    • Constitutional Power: Make treaties with other countries. Treaties require two-thirds ratification by the Senate after presidential negotiation.

The Isolated Presidency

  • Definition: Presidents who are least likely to get stuff done due to various factors:

    • Unelected or elected as Vice President and became President.

    • Lost the popular vote.

    • Serve under divided government (Congress controlled by the opposing party).

    • Not trusted by their own party.

  • Impact: Isolated presidents must rely heavily on their constitutional powers, as these exist regardless of political standing.

Example: John Tyler (Isolated President)

  • Background: Vice President who became President after the incumbent died. Faced divided government. Flip-flopped between parties, leading to distrust from both.

  • Demonstration: Despite being isolated, Tyler used constitutional powers effectively.

    1. Vetoes:

      • Tariff Bill: Vetoed a tariff he disliked, then signed a revised (lower) tariff, achieving a better deal.

      • National Bank: Vetoed a bill to renew the national bank charter, causing his entire cabinet to resign. He used this opportunity to appoint his own loyal cabinet members.

    2. Patronage: Issued low-level appointments (e.g., postmaster jobs) to his friends and cronies throughout the federal bureaucracy.

    3. Commander-in-Chief Clause (Dorr Rebellion): A rebellion in Rhode Island challenged the state government. Tyler chose not to send in the military, believing Rhode Island could resolve it, which they did. This demonstrated presidential discretion over military command.

    4. Execution of Law and Treaty Making (Maine Boundary):

      • Britain and the U.S. had an unresolved boundary between Maine and Canada.

      • Congress appropriated money for the Secret Service with broad discretion for the President on spending.

      • Tyler used this money for a propaganda campaign in Maine to convince residents to accept his preferred border.

      • He then negotiated a treaty with Great Britain, which the Senate ratified due to its popularity (influenced by his campaign).

    5. Legislative Recommendation (Texas Annexation):

      • Tyler sought to annex the Lone Star Republic (Texas).

      • Negotiated a treaty with Texas, but the Senate rejected it (requiring two-thirds ratification).

      • He then made a legislative recommendation for Congress to pass a law annexing Texas (requiring a simple majority in both chambers).

      • Congress passed the law. On his last day in office, Tyler offered Texas annexation, bypassing his successor, James K. Polk. This established a precedent of annexation by regular legislation rather than treaty ratification.

Extra-Constitutional Powers

  • Definition: Powers that extend "beyond the bounds of" the Constitution. Not necessarily unconstitutional, but not explicitly enumerated.

  • Origin: The "Vesting Clause" in Article 2 of the Constitution.

    • Article 1 (Congress): "All legislative power herein granted shall be vested in a Congress." (Limits Congress to explicitly listed powers).

    • Article 2 (President): "The executive power shall be vested in a president." (Does not include "herein granted").

    • Interpretation: Presidents argue this omission allows them a broader, "nebulous" executive power beyond the explicitly listed constitutional powers. This is a non-partisan argument used by presidents of all affiliations.

Extra-Constitutional Extensions of Constitutional Powers

  1. Vetoes (Constitutional) \rightarrow Signing Statements (Extra-Constitutional)

    • Line-Item Veto: Congress granted this power in the 1990s, allowing presidents to accept parts and reject parts of a bill. The Supreme Court struck it down as unconstitutional (violates separation of powers).

    • Signing Statements: Presidents sign a bill into law but issue a statement declaring they will not follow certain parts of the law. Effectively, these function as line-item vetoes, despite the Supreme Court's ruling.

      • Example (George W. Bush): Signed a military funding bill that prohibited certain interrogation techniques (torture) but issued a signing statement declaring that part unconstitutional as it infringed on his commander-in-chief powers, and he would not follow it.

  2. Legislative Recommendations (Constitutional) \rightarrow Executive Orders (Extra-Constitutional)

    • Executive Orders: Look like laws but are technically orders given by the President to the executive branch, framed as overseeing the branch.

      • Example (Harry Truman): Issued an executive order to desegregate the military.

  3. Appointments/Removals (Constitutional) \rightarrow Extent of Removal Power (Extra-Constitutional)

    • Argument: If a president can appoint someone, they should be able to remove them. The extent of presidential removal power is an evolving precedent, currently being refined by the Supreme Court.

  4. Execute Laws (Constitutional) \rightarrow Prosecutorial Discretion (Extra-Constitutional)

    • Prosecutorial Discretion: Presidents can choose not to execute certain laws.

      • Example (Barack Obama): Declared that federal law enforcement (FBI, ATF, DEA) would not bust people for smoking marijuana, leaving enforcement to states.

  5. Military Command (Constitutional) \rightarrow Undeclared Wars (Extra-Constitutional)

    • Undeclared Wars: Presidents send troops around the world without a formal declaration of war by Congress (e.g., Vietnam War).

    • Presidential Stance: Presidents assert this falls under their commander-in-chief powers, even when Congress objects.

  6. Treaties (Constitutional) \rightarrow Executive Agreements (Extra-Constitutional)

    • Executive Agreements: Look like treaties but are internal deals between executives of two nations, not requiring Senate ratification.

      • Example (Paris Climate Accords): Barack Obama signed this executive agreement to restrict carbon emissions without Senate ratification. Subsequent presidents (Trump, Biden) can enter or exit these agreements.

Contemporary Example: Donald Trump (Second Term)

  • Signing Statements: Vetoed a military funding bill but refused to enforce sanctions on Russia included in the bill, acting like a line-item veto.

  • Executive Orders: Increased use of executive orders (e.g., tariffs, email pronoun policies).

  • Prosecutorial Discretion: Claimed discretion to drop federal charges against the Mayor of New York City.

  • Undeclared "Wars": Invoked "war powers" based on the Alien Act of 1798 regarding immigration, referring to it as a national emergency/crisis, allowing for roundup and deportation of immigrants. Extended military use domestically (like Lincoln).

  • Executive Agreements: Took the U.S. out of the Paris Climate Accords, demonstrating a president's ability to cancel previous executive agreements