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An Imperial Presidency?. The Executive vs. Congress and the Courts. I. Can Congress Check the President?. What predicts Presidential success in Congress? Presidential popularity has little effect – Only a slight effect in the Senate, none in the House

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an imperial presidency

An Imperial Presidency?

The Executive vs. Congress and the Courts

i can congress check the president
I. Can Congress Check the President?
  • What predicts Presidential success in Congress?
    • Presidential popularity has little effect – Only a slight effect in the Senate, none in the House
    • Partisanship: Same-party members more supportive
      • Effect is largest for first-term Congresspeople
      • Effect is largest during non-election years
    • Issue Type: Foreign policy success more likely than domestic policy success
    • Proaction vs. Status Quo – President is more successful at stopping unfriendly bills than passing friendly ones
b what predicts executive success in the bureaucracy
B. What predicts executive success in the bureaucracy?
  • Legislative Vetoes: Congress attaches strings to delegation of power
    • Declared unconstitutional – INS vs. Chadha
    • Hundreds of new legislative vetoes passed since INS vs. Chadha! – Effective because Congress refuses to delegate authority when Presidents ignore legislative vetoes
2 executive orders
2. Executive Orders
  • Presidents issue more executive orders under united government!
  • Orders rarely overturned – because Presidents don’t issue them if they anticipate a veto-proof majority against them
c war powers does congress have a role
C. War Powers: Does Congress Have a Role?
  • Declaration of War vs. Commander-in-Chief: Which clause governs initiation of combat?
    • Early 19th Century: Congress authorizes military action short of war against France, Barbary Pirates, American Indians, etc.
    • Late 19th Century – Early 20th Century: Presidents begin deploying small detachments of Marines without advance approval from Congress
    • 1950: Truman calls the Korean War a “police action” and says no declaration of war is needed
    • 1989: Bush invades Panama without asking Congress for authority
    • 1991: Bush argues that UN Security Council approval eliminates need for Congressional approval (then asks for it anyway). Clinton repeats the argument for UN/NATO approval in 1994 (Haiti and Bosnia) and 1999 (Kosovo)
2 war powers act
2. War Powers Act
  • Enacted in 1973
  • Requires President to notify Congress and get permission to continue hostilities beyond 60 days
  • Repudiated as unconstitutional by all Presidents since
  • No military action has ever been curtailed by the War Powers Act
3 the power of the purse
3. The “Power of the Purse”
  • Congress must approve all expenditures
  • Congress can stop wars by cutting off funds
  • Process is rarely used
    • Never used during war – No one will vote to leave US troops stranded, and Presidents threaten not withdraw them before money runs out
    • Used to prevent escalation: Southeast Asia (1973), Central America (1980s – circumvented)
  • Some argue process is unconstitutional: Reagan rejected constitutionality of Boland Amendment
ii can courts check the president
II. Can Courts Check the President?
  • The power of judicial review: limited by Court’s inability to enforce decisions
    • Jefferson threatens to ignore the Court – Marbury vs. Madison as a strategic decision
    • Jackson ignores the Court – Worcester vs. Georgia
    • Lincoln ignores the court repeatedly – Dred Scott, Ex parte Merryman
    • Nonenforcement is extremely rare: requires public opposition to Court legitimacy
b limits on the court s power
B. Limits on the Court’s Power
  • Case or Controversy – Real dispute must exist; no advisory opinions
  • Stare Decisis – Respect precedent
  • Political Question Doctrine – Avoid questions best decided through political process or by another branch
  • Comity – Treat other branches as equals (avoid interfering in internal processes)
  • Jurisdiction – Congress can strip Court of jurisdiction over some cases
  • Standing – Parties must have specific personal stake in outcome
c courts as a check on the executive bureaucracy
C. Courts as a Check on the Executive Bureaucracy
  • Courts now follow doctrine of deference on regulatory decisions
  • Actual amount of deference seems to depend on Presidential popularity
d effectiveness of the court vs presidential power
D. Effectiveness of the Court vs. Presidential Power
  • Domestic policy – Effective: Truman’s Seizure of Steel Mills, Nixon’s Tapes, etc.
  • Foreign Policy – Ineffective
    • Treaties must be Constitutional – But not one has ever been struck down
    • War powers limited – But political question doctrine normally prevents resolution
    • Extreme deference on national security – willingness to base decisions on unknown secret information
iii conclusions
III. Conclusions
  • Domestic policy – Presidential power highly limited
    • Presidential programs easily blocked by Congress, also subject to Court review
    • President does have some ability to prevent disliked domestic policy through nonenforcement or veto power
  • Foreign policy – President is virtually unconstrained
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