An Imperial Presidency?

1. An Imperial Presidency? The Executive vs. Congress and the Courts

2. 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

3. 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

4. 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

5. 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)

6. 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

7. 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

8. 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

10. 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

11. 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

13. 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

14. 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