The Constitutional Powers of the President
The powers and duties of the president are outlined in Article II of the Constitution. Although the Constitution grants far fewer explicit powers to the president in Article II than it does to Congress in Article I, the ambiguity and vagueness of Article II have made it possible for presidents to expand their authority greatly beyond that specifically listed in the Constitution.
The two passages in the Constitution that have provided the basis for the expansion of presidential authority are Article II, Section 1, which grants “the executive Power” to the president, and Section 3, which makes the president responsible for the enforcement of federal laws: “he shall take Care that the Laws be faithfully executed.”
The uncertainty in the Constitution about the president's powers reflects the ambivalence of the framers of the Constitution over the office they were creating. On one hand, the framers saw the president as a nonhereditary, elected official responsible to the people, while, on the other, they were concerned about the effects of too much democracy and the possibility that the president would respond to popular demands in ways that hurt minority rights. Similarly, the Constitution gives the president sweeping powers over the administration of the federal government, while also subjecting it to congressional constraints.
I. Powers as Chief Executive
A. Appointment and Removal Power
One of the most important administrative powers of the president is to appoint people to fill high-level positions in the administration. Article II, Section 2, gives the president the power to select top officials, subject to Senate approval.
In the nineteenth century presidents and Congress had much greater appointment powers, sharing in the use of the patronage system to distribute all types of government jobs to their friends and political supporters. The enactment of civil service laws largely put an end to that practice, so that today about 90 percent of executive branch positions are covered by the merit systems, leaving only the most senior positions to be filled by presidential appointees. Nevertheless, presidents' powers to choose personnel for these positions enable them to help set the direction for the bureaucracy.
The Constitution does not clearly establish a budgetary process or spell out the presidency's role in such a process. Because of this ambiguity, presidents have been able to bring much of the process under their control. Article I of the Constitution gives Congress power over taxes and spending, while Article II, Section 3, gives presidents the power to recommend fiscal policies.
The power to control the budget process is one of the most important administrative prerogatives of the presidency. Often, it is the president who decides where and how money should be spent. In the last part of the twentieth century, the presidency assumed an increasingly important role in determining federal spending.
The president's role in law enforcement rests on the constitutional requirement that the president “take Care that the Laws be faithfully executed.” The president serves as chief executive of what has become a vast law enforcement apparatus. Should assistance be needed, the president can invoke the authority of “commander in chief” and deploy the armed forces, including units of state militia, to enforce the law.
The Constitution gives the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The framers specifically included this power to enable the president to make well-timed offers of pardon to those in domestic rebellion against the government, when such a move might help restore order.
The clemency authority of the president is extensive. It applies to any federal process or offender, except officials who have been impeached. The best-known use of the clemency power in recent decades was Gerald R. Ford's pardon of Richard Nixon for offenses committed during the Watergate affair. In addition, Ford and Jimmy Carter issued amnesties, which are pardons covering a whole group of people, for draft evaders during the Vietnam War.
More than two hundred years of history have seen an immense and fundamental expansion in the array of resources the president can use to influence public policy.
Perhaps the chief legal weapon presidents have in their relationship with Congress is the veto power, which enables presidents to prevent all but the most popular pieces of legislation from becoming law against their wishes.
Under the Constitution, presidents may respond to a bill passed by Congress in one of three ways. They may sign it, veto the bill by returning it to Congress, or do nothing. If they do nothing, the bill becomes law after the passage of ten days, excluding Sundays. If Congress adjourns sooner than ten days after the bill passed, however, the bill dies, under the “pocket veto” provision. If the president vetoes a bill, Congress can still enact it into law by re-passing the measure with two-thirds majorities in both chambers. Such overrides are relatively rare, however; from 1789 through 2002, only 106 of 2,551 presidential vetoes were overridden, about 4 percent.
The Constitution also authorizes the president to “recommend to [Congress's] Consideration such Measures as he shall judge necessary and expedient.” Unlike the veto, which is a limited and somewhat negative instrument for stopping legislation, the duty to recommend legislation has over time become the primary mechanism by which chief executives influence the nation's political agenda. Given the presidency's relatively weak array of formal devices for mandating government policy, no other facet of the office today is as critical to presidential success or failure. The ability to shape the agenda of government—to decide what is or is not a priority—is in essence the power to influence what government will or will not do.
Throughout most of the nineteenth century, the president had little power to define the national agenda. Congress dominated government, and presidents were not expected to formulate legislative proposals. The turning point in the transformation of the presidency into the chief initiator of major legislation came in 1933, when Franklin D. Roosevelt responded to the crisis of the Great Depression with a flood of legislative proposals, known as the “first hundred days,” that both dominated the congressional agenda and brought about a historic change in the role of the federal government in national life. Although few presidents since have been as successful as Roosevelt, his tenure has become the model for the office.
The section of the Constitution that allots to the president “executive power” is one of the least specific but potentially most important in the document. When paired with the provision requiring presidents to take care that laws are faithfully executed, the executive power clause provides for a range of implied powers whose extent and potency have grown beyond anything the framers could have foreseen.
Executive orders usually pertain specifically to government agencies and officials, but their effects often reach to the average citizen. For example, in 1965 Lyndon B. Johnson issued Executive Order 11246 which required companies that win federal government contracts to create programs for hiring more minorities, significantly affecting private sector employment practices. For the most part, presidents issue executive orders to establish executive branch agencies, to modify bureaucratic rules or actions, to change decision-making procedures, or to give substance and force to statutes.
In times of crisis presidents often lay claim to extraordinary powers to preserve the nation. Such emergency powers are neither granted expressly to the president nor delegated to Congress by the Constitution. Instead, they are judged to reside purely in the need for leaders to protect national sovereignty and domestic order. The mandate in Article II that the president “preserve, protect and defend” the Constitution and uphold its provisions is considered to contain implicitly the notion of emergency powers.
The most significant use of presidential emergency powers was made by Abraham Lincoln during the Civil War. Faced with the secession of the southern states, Lincoln claimed numerous emergency war powers to save the Union, in the process becoming what some have called a “constitutional dictator.” The most controversial use of the emergency power in the twentieth century came in 1951 when Harry Truman, who had put the nation on emergency footing after North Korea invaded South Korea, ordered the seizure of strike-threatened steel mills to avoid potential shortages. Truman based his action on the president's inherent authority to meet national emergencies. However, the Supreme Court later ruled that the seizure was unconstitutional.
In November 2001, in the wake of the September 11, 2001, terrorist attacks on the United States, George W. Bush authorized the use of military tribunals for trying foreigners accused of terrorist acts against the United States. Bush said that emergency powers under the commander-in-chief clause gave him the latitude to put these measures into place.
The Constitution grants few foreign affairs powers to the president. Although it gives the president authority to make treaties and appoint ambassadors, it allots Congress a range of powers in the area that are at least equal to those of the president. Indeed, the constitutional division of foreign affairs power has been described as “an invitation to struggle.”
Article II, Section 2, Clause 2, gives the president power to make treaties with other countries, subject to ratification by a two-thirds majority of the Senate. This provision sets up a classic division of power between the legislative and executive branches. The primary responsibility for conducting treaty negotiations lies with the president, but the president cannot bring about a final agreement without the concurrence of most senators.
Nevertheless, the executive branch has established itself as the dominant branch in treaty making. As the sole organ of communication with foreign countries, as the commander in chief, and as the head of the foreign policy bureaucracy, presidents are equipped with the means needed to control most phases of the treaty-making process. Presidents can stop the process at any time, if they think the pact would be voted down on a full Senate vote, or if they dislike any changes the Senate has made. In 1980, for example, Jimmy Carter withdrew the SALT II treaty with the Soviet Union from Senate consideration after Soviet troops invaded Afghanistan.
An executive agreement is a pact other than a treaty made by the president with a foreign government. Presidents have asserted that their constitutional powers give them authority to make these pacts without Senate approval. For presidents, the executive agreement is a particularly powerful foreign policy tool because it allows them to act without seeking congressional backing. The chief limitation on executive agreements is that, unlike treaties, they do not supersede any U.S. laws with which they might conflict.
Between 1945 and 1996 only 6 percent of all international agreements entered into by the United States were treaties. Executive agreements are now used to conduct business once reserved for treaties. For example, trade agreements, the annexation of territory, military commitments, and arms control pacts have all been concluded through executive agreements.
Although the Constitution does not explicitly grant presidents the power to recognize foreign governments, it is generally accepted that they have this power as a result of their authority to send and receive ambassadors. Because the acts of sending an ambassador to a country and receiving its representative imply recognition of the legitimacy of the foreign government involved, presidents have successfully claimed exclusive authority to decide which foreign governments will be recognized by the United States. It follows, then, that they have the power to terminate relations with another nation as well. The constitutional power to appoint ambassadors is also important because the success of a president's foreign policy depends somewhat on the personalities and abilities of the people who fill important diplomatic posts.
Reflecting the clear consensus at the Constitutional Convention that the nation's highest civilian officer should have charge of the military, the Constitution states that the president “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” That is the only statement in the document about the president's war-making power. Because the precise authority of the office of commander in chief is left undefined, presidents have been able to argue that they possess any power needed to improve the nation's defenses in peacetime or to help it prevail over an enemy in wartime, without usurping the power of the other branches or violating the law.
The Constitution does not give the president complete domination over the war-making function. The power to declare war is reserved for Congress, as is the ability to raise and maintain an army. Nevertheless, presidential use of the power to order U.S. forces into combat without a congressional declaration of war increased greatly during the twentieth century. Particularly during the half-century of cold war conflict between the United States and the Soviet Union, presidents claimed the right to deploy military forces on their own initiative. Presidents also had the support of congressional resolutions authorizing them to use force, such as the Tonkin Gulf resolution which Lyndon Johnson claimed as his legal authority for carrying out the war in Vietnam.
In 1973 Congress responded to Richard Nixon's continuing prosecution of the Vietnam War by passing the War Powers Act over Nixon's veto. The most important and controversial provisions of the law outlined the situations under which presidents could commit troops, permitted Congress at any time to order the president to disengage troops involved in an undeclared war, and required the president to withdraw armed forces from a conflict within sixty to ninety days unless Congress specifically authorized its continuation. The law has failed to substantially change presidential war-making prerogatives, however. In 1991 George Bush allowed a dramatic debate and vote in Congress over authorization of his use of force in the Persian Gulf without admitting that his actions were subject to the War Powers Act. In the fall of 2002, George W. Bush sought, and eventually received, congressional authorization to use military force against Saddam Hussein's regime.
The president also serves as the chief of state of the United States, presiding over ceremonial functions. This office, which in countries with constitutional monarchies is carried out by the king or queen, serves as a symbol of the permanence of the national state. The president's role as chief of state as described in the Constitution includes the obligation to take the oath of office, deliver an annual State of the Union message, and receive ambassadors from other countries. Although the president's ceremonial functions do not constitute a major source of power, they elevate the office above other offices and institutions and create a leadership mystique that can be of great help to a president in achieving policy goals.