Chapter 14: The Presidency in Action Honors Classes, Nov. 18, 2013

1. Chapter 14: The Presidency in ActionHonors Classes, Nov. 18, 2013

2. What does the Owners’ Manual say? • Article II: “The executive Power shall be vested in a President of the United States of America.” • So what is “executive Power”? It kinda depends on who you ask. • Most of the Framers thought the President would just do what Congress wanted him to do. He was the “presider.” • Today, not so much. In fact, some think we have an “imperial presidency.”

3. Do we have an “imperial presidency”? • First, what is it? It’s when a President acts without consulting Congress, often in secret. • Some “yes” arguments include Pres. Obama’s unilateral decisions in the following areas: • Obamacare: businesses given a 1-year exemption; Congress exempted. • DOMA: not going to defend it. • Federal marijuana laws: not going to enforce them in CO and WA. • DREAM Act: Didn’t pass, but we won’t deport certain illegal immigrants.

4. Imperial presidency (cont.) The charge is made against all presidents by opponents. “Where you stand depends on where you sit.” Some examples: • Bush II (expansion of spying activities and treatment of suspected terrorists as “enemy combatants”) • Clinton (bombing of Serbia) • Reagan (Iran-Contra) • FDR (court-packing scheme) • Lincoln (suspension of habeas corpus) • Jefferson (purchase of the Louisiana Territory)

5. Imperial presidency (cont.) Note that one big check on the “imperial presidency” idea is the “take care” clause of the Constitution. Art. II, Section 3: The President “shall take Care that the Laws be faithfully executed….” He also must swear that he “will faithfully execute the Office of President of the United States….”

6. So what are his powers? Distinguish “formal” from “informal” powers. Informal Issue executive orders (the “ordinance” power) Enter into executive agreements Use signing statements Invoke executive privilege Invoke executive immunity Remove officers Formal • Command the military • Make treaties • Approve/veto bills • Send/receive diplomats • Grant pardons • Nominate judges/ambassadors • Recommend legislation

7. The formal powers: War • Only __________ gets to declare war. • (Hint: It has 1070 legs and talks a lot.) • But the President is Commander-in-Chief. • But Congress can “raise … Armies.” • But the President can direct what those armies do. • But Congress has the power of the purse. • But the President can commit us to a “war” that is hard to get out of. What are we to do?

8. War powers (cont.) • What has the Supreme Court said? • Exactly nothing. • Why? Because of something called the “political question” doctrine.

9. War powers (cont.) • Congress tried to settle this issue with the War Powers Resolution (WPR) after the Viet Nam War. • WPR encourages President to consult with Congress before sending troops “in every possible instance” and shall consult “regularly” thereafter.

10. War Powers Resolution • Troops committed without declaration of war? President is to report within 48 hours to Speaker and Senate Majority Leader on • why he authorized the force, • the Constitutional authority for the action, and • the estimated scope and duration. • Once that report is filed, Congress has 60 days (+ one 30-day extension) to authorize use of troops. • No authorization? Bring the troops home.

11. War Powers (cont.) • Here’s the problem: Presidents never report “pursuant to” the WPRand thus don’t trigger the 60/90-day clock. From The WPC Report: • “no President has ever filed a report ‘pursuant to’ [the WPR]. * * * President Gerald Ford submitted one report that ‘took note of’ [the WPR]. * * * Every President since Ford has questioned the constitutionality of the War Powers Resolution and submitted reports that are ‘consistent with,’ but not ‘pursuant to’ the statute.” Report, at p. 24 • Congress doesn’t really seem to care. Some individual congressmen have sued, but the courts always dismiss the cases.

12. War Powers (cont.) Another issue with the WPR: are drone missile strikescovered? • For awhile we were firing over 1 per day on targets in Pakistan. Should the President have to consult with Congress before using drones?

13. War Powers (cont.) So we’re really back to where we started with war powers: • lots of tension because of the separation of powers in the Constitution; • lots of military actions that look like war but isn’t; and • a “law” that is ignored and probably out of date anyway.

14. Break for a cute animal picture

15. Back to formal powers: Treaties • As you know, the President can make treaties subject to the ________ and _________ of the ___________. • (hint: this one only has 200 legs but still talks a lot; in fact, it loves to give its advice) • Two-thirds of the Senate must consent to a treaty before it can be ratified by the President and become law. • Because the President’s treaties are at the mercy of the Senate’s advice and consent, the President usually will try to avoid using this formal power and instead use the informal power of Executive Agreements.

16. A detour into an informal power: Executive Agreements Executive agreements – • Are international agreements made by a president, usually related to trade. • Have the force of a treaty – i.e., they are legally binding. • Ex: Jefferson’s purchase of the Louisiana Territory, cuts in nuclear arsenals. Here’s the beautiful part: they do not not need Senate approval.

17. Executive Agreements (cont.) Why not use these all the time? Actually, presidents do. • The vast majority (like 95%) of international deals are executive agreements, not treaties. • If the President is doing something Congress asked him to do, then he will use an executive agreement and not a treaty. • But if the President is freelancing, he will probably use a treaty. • Politically good to get Congress’s consent on something controversial. • Plus, Congress probably is going to have to provide funding, so you might as well get them involved sooner rather than later.

18. Back to formal powers: Pardons A President may grant -- • Reprieves (i.e., postpone a sentence); • Pardons (complete forgiveness; a “get out of jail free” card); • N/A in cases of impeachment; • Commutations (reduced penalties); and • Amnesty (a pardon of a lot of people). Most famous pardon: Ford of Nixon. Yes you are.

19. Formal powers: Appointments • As you know, the President can appoint judges and justices, ambassadors, and senior officers in the federal government, all with the ______ and ______ of the __________.* • What you may not know is whether the President can fire them without the Senate’s consent. • Argument for Senate’s consent: they had a say in who gets in, so they should have a say in who goes out. • Argument against Senate’s consent: The President needs the deputies he wants in order to do his job. * Please tell me you know this by now.

20. Related informal power: Removal The President won; he can fire any senior officer for any reason EXCEPT – • Federal judges/justices (who serve for life “during good Behavior”), and • Officers holding an office where the statute says that the President needs a reason to fire you (like negligence, malfeasance, etc.; not real hard to prove). In reality, if the President wants you gone, you go.

21. Let’s mop up with a few more informal powers: Executive Orders • The President telling the executive branch staff what to do. Your book calls this the “ordinance power.” • Executive orders have the force of law. • Some examples: • FDR’s Japanese internment during WWII • Truman’s seizure of the steel mills during Korean War • Clinton’s “Don’t Ask, Don’t Tell” policy

22. Executive Orders (cont.) • Note that Executive Orders can only be directed at the Executive Branch staff. • So, for instance, a president could not issue an executive order directing states to legalize marijuana. • Note also that these should limited to executing laws and powers the President already has. • This is where the “imperial presidency” often starts.

23. Informal Powers: Executive Privilege What is it? • It’s basically the President saying “I’m going to withhold information.” • The president argues that he has the right to decide that the national interest will be better served if certain information is withheld from the public, including the Courts and Congress.

24. Executive Privilege (cont.) • See U.S. v. Nixon (1974) (the Watergate tapes case). • Privilege exists (particularly in military and diplomatic affairs) but is not absolute. Generalized claims of privilege can’t trump need for fair administration of justice. • So, Nixon couldn’t withhold the famous tapes. • Obama invoked executive privilege in “Fast and Furious.”

25. A related concept: Executive Immunity • Idea is that a president should be immune from lawsuits for actions taken when president. • See Nixon v. Fitzgerald (1982). The President "is entitled to absolute immunity from damages liability predicated on his official acts.” • But note that this does NOT provide immunity from criminal prosecution, only civil liability.

26. Executive immunity (cont.) Executive immunity also held NOT to apply in situations involving suits for conduct before becoming president. Clinton v. Jones (1997). • Ironic side note: • The Court made its ruling on the assumption that the civil action was unlikely to take up much of Clinton’s time. • Monica Lewinsky was a witness in the Jones case. • Linda Tripp taped Lewinsky. • The rest is history.

27. Informal Powers: Signing Statements • Signing statements are pronouncements made by a president when he signs a bill. • They may be an attempt to do an end-run around a bill in certain respects.

28. Signing Statements (cont.) Example of one: President Bush, in signing the Detainee Treatment Act of 2005, (which outlawed certain forms of interrogation) stated, “The executive branch shall construe... the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power....” Translation: We’ll keep waterboarding.

29. Signing Statements (cont.) Arguments against signing statements and some responses to those arguments: • Like a line-item veto, which is impermissible. • Response: Signing statements highlight provisions deemed by the President to be unconstitutional. If something is unconstitutional, it shouldn’t be enforced. (Although if the signing statement is for policy objections, then this rebuttal doesn’t work.) • The “take care” clause obligates the President to implement a law. • Response: Same basic argument. The President’s duty applies only to valid laws, and unconstitutional laws are not valid.

30. A long-ish look at presidential styles • http://www.learner.org/courses/democracyinamerica/dia_7/dia_7_video.html

31. Review quiz • What is the “political question” doctrine? • How does the “take care” clause provide a check on the “imperial presidency”? • What is the main problem with the War Powers Resolution? • Why would a president want to use executive agreements instead of treaties? • What is a signing statement? • When is a president entitled to executive privilege? • When does executive immunity NOT apply? • What are the 4 ways in which a president may help someone accused of a crime?

32. Answers • The political question doctrine is an informal rule of the Supreme Court that allows the Court to decline to hear cases that are better resolved by Congress and the President. • The “take care” clause checks the imperial presidency b/c it requires the president to “take care” to “faithfully execute” all laws and not just the ones he likes. • The main problem with the WPR is that presidents never file a report “pursuant to” the resolution and thus the 90-day clock for Congressional action never starts. • A president would want to use executive agreements and not treaties b/c no Senatorial approval is required for the agreements.

33. Answers (cont.) • A signing statement is a written pronouncement of a president when he signs a bill. • A president is entitled to executive privilege when he is acting in his official capacity and the fair administration of justice doesn’t require otherwise. • A president is NOT entitled to executive immunity when the conduct occurred before his presidency or is otherwise not in his official capacity. • The 4 ways a president can help the accused are (a) reprieves, (b) pardons, (c) commutations, and (d) amnesty.