Unit IV: Institutions Ch. 14: The Presidency

1. Unit IV: InstitutionsCh. 14: The Presidency pp. 368-407

2. Constitutional Roles-Chief Executive: Powers: • “take care” clause of Article II requires that the president enforces laws, treaties, and court decisions. This clause has also been used to justify: • Impoundment (refusal to spend money appropriated by Congress) • Lincoln’s suspension of habeas corpus • Foreign Intelligence Surveillance Act (FISA) • Appoints officials to office, and can fire them • Recess appointments • Issues executive orders to carry out laws-do not need Congressional approval (“Stroke of the pen. Law of the Land. Kinda cool." 
Paul Begala, former Clinton advisor, The New York Times, July 5, 1998) Checks: • Congress passes the laws and has the “power of the purse” • Senate can reject appointments and treaties • Impeachment (House) and removal (Senate) • Supreme Court can strike down executive orders

3. Commander-in-Chief Chief Diplomat Power: • head of the armed forces Checks: • Congress appropriates funds for the military • Congress declares war • War Powers Act of 1973 Powers: • Sets overall foreign policy • Appoints and receives ambassadors • Negotiates both treaties and executive agreements • Negotiates “congressional-executive agreements” with leaders of other nations that require the simple majority consent of both houses of Congress • Gives diplomatic recognition to foreign governments Checks: • Congress appropriates funds for foreign affairs • Senate can reject ambassadors and treaties

4. Chief of State Chief Jurist • The ceremonial head of our nation • Most nations separate Chief Executive and Chief of State roles (Britain has both PM and monarch) Powers: • Appoints federal judges • Issues pardons and amnesty Checks: • Senate can reject judicial appointments • Senators can place “holds” on appointments • Senators can filibuster nominations

5. Non-constitutional Roles: A. Head of Political Party B. Chief Economist • Selects the party’s chairman of the national committee and VP nominee • Political patronage (appoints loyal party members to federal positions) • Responsible for the overall health of the economy • Proposes the federal budget (though Congress can alter it)

6. I. Presidents and Prime Ministers A. Prime Minister B. President • Chief Executive is chosen by legislature • Cabinet chosen from among members of Parliament • Prime minister remains in power as long as his/her party has majority in Parliament • Party insiders • President chosen by people • Cabinet chosen from outside Congress • President has no guaranteed majority; usually a divided government • Party outsiders • President and Congress often work at cross-purposes even when unified government as a result of separation of powers

7. II. Evolution of the Presidency: Constitutional Convention A. Alternatives B. Concerns of Founders: • Some proposed a plural executive • Some wanted an executive council to have veto power over presidential actions • Some wanted a president with a life term • Compromises resulted in a single, elected President with a fixed term of office • Fear of an excessively strong President: • The “fetus of monarchy” • No term limits • Fear of an excessively weak President who would become a “tool of the Senate” because of its ratification and confirmation powers • “Make him too weak: the legislature will usurp his powers. Make him too strong: he will usurp the legislature.”

8. C. Election of the President • Some wanted Congress to elect the President: fear of congressional dominance • Some wanted direct election. Problems: • Inordinate weight to large states • Demagogues might have excessive appeals to the masses • Illiteracy • Poor communication • Compromise: The Electoral College • The people had some input • Large states had a good amount of influence, but small states were protected by having a minimum of three electoral votes • Small states would also have a great deal of clout if the election were thrown into the House (it was assumed this would happen often since the two-party system was not anticipated). Under this scenario, each state has one vote and small states are therefore grossly over weighted. • Term of office: fear of an unlimited number of terms of office were quieted when Washington chose not to run for a third term. This precedent was followed until 1940.

9. III. The First Presidents A. Washington-Monroe, 1789-1825 B. Andrew Jackson, 1829-1837. • All eminent men who were active in the movement for independence, all but Adams served two terms, all but Adams were Virginians • Though Washington warned against it, political parties developed • General “rule of fitness” prevailed in making appointments. Partisanship did become a factor, but generally only well-respected men received appointments. • The presidency was kept modest. It was assumed Congress would take the leading role in the new national government. Expansion of presidential power: • Use of spoils system: appointing loyal party members to federal positions • Jackson vetoed 12 acts of Congress, more than all his predecessors combined • Jackson ignored a Supreme Court order regarding Indian removal

10. C. The Reemergence of Congress, 1837-1932 • With the end of Jackson’s 2nd term, Congress quickly reestablished its power • There were some brief flashes of presidential power, e.g. the wartime presidency of Lincoln (suspension of habeas corpus, blockade of South, raising an army, Emancipation Proclamation-all without congressional consent), but Congress was the dominant branch. Of the next eight presidents after Jackson, none served more than one term of office. • With the exceptions of T. Roosevelt and Wilson, the presidency was seen as a negative force-a source of opposition to Congress, not a source of initiative and leadership for it. (Ex: Cleveland’s 414 vetoes, more than any other president until FDR) • Today, we think of the president as initiating legislative programs and then Congress responds; until 1930s opposite was the case. • In the past, it took either a strong personality (Jackson, TR, Wilson) or a crisis (Civil War, WWI) for the president to become the central figure of government.

11. D. Emergence of the Presidency. • Another crisis, the Great Depression, led to increased presidential power: FDR’s New Deal. • With the onset of WWII, a foreign policy crisis led to continued presidential power. • The development of the Cold War facilitated continued presidential initiative and power. Truman, JFK, LBJ, Nixon. • In the 1970s, Congress finally reasserted itself, but with mostly short-term results. Reagan restored the power and prestige of the presidency. • Bush 43 strengthened presidential authority (war powers and the Patriot Act)

12. E. Growth of Presidential Power • Originally Congress, not President, was to be dominant • 20th century: power of office has grown considerably • Non-constitutional sources of presidential power • Unity of office (1 person as opposed to 535 member Congress) • Presidential character and personality: strong personalities can have great impact (Roosevelts, LBJ…) • Growing complexity of society: with a highly industrial and technological society, people have demanded that the federal government play a larger role in areas of public concern, e.g. pollution, labor issues, air travel safety. The executive branch has thus grown to meet those public demands. • Congressional delegation of authority to the executive branch: • Congress writes broadly-worded legislation and lets executive agencies “fill in the holes” (discretionary authority) • Congress often bows to presidential demands in time of economic or foreign crisis • Congress often bows to President when he can proclaim a mandate from the the people after a large electoral victory

13. Development of mass media and the president’s “electronic throne” • Emergence of U.S. as the great superpower after WWII. Development of the Cold War placed the U.S. into a virtual non-stop crisis situation after 1945 – assumption of great powers by the president to deal with various foreign crises. • Three rules of thumb to maximize presidential power and effectiveness: • “move it or lose it” – get things done early in terms when popularity is highest; popularity declines over time. • “avoid details” concentrate on a few top priorities • “cabinets don’t get much done; people do” Place more trust in WH staff instead of Cabinet secretaries with divided loyalties

17. A. Qualifications: B. Terms of Office: IV: Overview and Powers of the Presidency • Natural-born citizen • At least 35 years of age • Residency for at least 14 years. • Four years • Maximum of two elected terms. • Washington’s precedent was institutionalized by the 22nd Amendment (1951) • Passage of 22nd A. due to Republican Congress’ concern over future FDRs. • Possible to serve 10 years if a VP becomes President just after the midpoint of a President’s term of office. If a VP serves less than half of a President’s term, he can be elected to the presidency only once.

18. C. Compensation D. Succession • If office of presidency is vacant due to death, resignation, or impeachment and removal, the VP becomes President. If VP dies before his inauguration as President, the line of succession is as follows: Speaker, Pres Pro Tem, Sec of State, Treasury, Defense, and then the other Cabinet sec in order of creation of offices. (Presidential Succession Act of 1947). • If the President is disabled, the 25th Amendment applies: • President informs Congress of disability and the VP becomes Acting President. • If the President is unable to inform Congress, the VP and a majority of Cabinet secretaries can go to Congress and receive approval for the VP to become Acting President • In either case, the President regains powers by informing Congress of his intent to return. In case of a dispute, Congress has the power to decide who shall be President. • Set by Congress. Cannot be raised or lowered during a president’s term of office. • Salary was raised from $200,000 to $400,000 in 2001 (first raise since 1969). • Numerous other perks. • Opportunity to make serious money after leaving office: • Speaking fees, writing memoirs, serving on corporate boards of directors

19. V. The Office of the President • White House Office/White House Staff (no Senate consent) • Immediate staff of President: office space in West Wing = proximity to President. Rule of propinquity: power is wielded by people who are in the room where decisions are made. • Organization: two general forms • Circular method (FDR, Carter): President is “hub” and numerous assistants are “spoke” • Pyramid method (Ike, Nixon, Reagan, Clinton): assistants report through a hierarchy, ultimately a Chief of Staff, who then reports to the President • Analysis: • Circular method allows for greater access and more information, but at the expense of efficiency. Presidents can become overwhelmed and overworked by details, losing sight of the greater picture and their broad goals • Pyramid method allows for greater efficiency, but at the expense of access and information. Presidents can be “kept in the dark” by a “palace guard” and can lose touch

20. 3. Appointments to the White House Office (e.g. Chief of Staff) do not require Senate consent. Officials are less subject to testifying before Congress since they have a greater degree of executive privilege protection. Presidents typically seek people who will be loyal-fewer divided loyalties as compared to Cabinet positions 4. Reliance on a small circle of WHO staff can lead to problems B. The Executive Office of the President Appointments to the EOP require Senate consent. • OMB: prepares the annual budget and reviews federal programs. • NSC: coordinates foreign/military policy. Increasing importance of NSA since Nixon. • CEA: three-person advisory group on economic policy. • Council on Environmental Quality • OPM:

21. EOP Organization

22. VI. The Cabinet • definition: the head of the Cabinet departments and 5 others who hold “Cabinet rank” (OMB Director, CIA Director, WH Counsel, UN Ambassador, US Trade Rep, head of SBA) • Each of these is appointed by the President with Senate consent • In Parliamentary system, Cabinet officials are members of Parliament, they meet regularly, and collectively make public policy • In our system: • Cabinet officials are constitutionally banned from also being members of Congress. • The Cabinet meets irregularly. Only at the call of the President. • Cabinet officials are more interested in defending/enlarging their own departments than they are in meeting together to create public policy. Arguments against enlarging Cabinet: • Divided loyalties of Cabinet officials: are the Secretaries most loyal to President? To the Congress (which funds departments)? To client groups (which depend on departments)? To employees of departments (Secretaries deal with daily)? • President’s goals often conflict with Cabinet department’s goals

23. The Cabinet E. Presidential influence over the Cabinet: limited F. Factors affecting selection of Cabinet Secretaries: • Presidents can fire the political appointees within a department • However, Presidents have little control over the civil service employees of a department. • Party affiliation • Interest group influence • Race • Sex • Geographical diversity • Confirmability

24. Obama’s Cabinet 2nd Term: Shaun Donovan OMB x x J Johnson: DHS Julian Castro: HUD Sylvia Matthews Burwell: HHS Loretta Lynch: AG x x x x X X X Ashton Carter: Sec Def Bob McDonald: Veterans Affairs Susan Power: UNAMB John King, Acting Sec Ed

25. Educational Comparison of Bush & Obama Administrations

26. The Cabinet

27. VII. Who Gets Appointed to Federal Positions? • The number of appointments is large, but the percentage of appointed positions in the federal government is small (less than 10%) • Presidents often do not know their appointees well and depend heavily on staff recommendations. • Background of appointees: • Tend to come from private industry, universities, law firms, think tanks, Congress, state/local government • Most have had some federal experience (some just prior to appointment). • Some are “in-and-outers” (alternate between jobs in the public and private sectors-”the revolving door”

28. VIII. The Power to Persuade • Power of the office of the presidency • Powers are not as clearly defined in the Constitution as are Congresses’. (“Executive Power” to the president, but not spelled out very clearly) • In crisis, power grows to vast proportions, but in “normal” times, President subject to checks and balances. • Checks that weaken the President: • Constitutional checks: Congress and courts • Informal checks: • Congressional leaders, Cabinet, bureaucrats, political parties, interest groups, media, Senate’s use of holds and filibusters on nominations, divided government, multilateral world

29. How Hard (or Easy) It Will Be for Trump to Fulfill His 100-Day Plan By LARRY BUCHANAN, ALICIA PARLAPIANO and KAREN YOURISH NOV. 21, 2016 NY Times President-elect Donald J. Trump released a plan last month outliningthe priorities for his administration, many of which were repeated at most ofhis campaign rallies and events. He can accomplish some of his promises entirelyon his own, but others require Congress or pose other significant obstacles.

30. IX. Congress vs. the President Sources of Conflict: • Separation of powers and checks and balances – there is supposed to be conflict. • Each represents different constituencies • Congress: state/local interests (“all politics is local”) • President: national interests • Different times of election: difficult for either to gain excessive power for any great length of time. • Partisanship • Unity of office (President) vs. diffusion of power (Congress) • “two presidencies” thesis: congress more cooperative on foreign policy and national security issues, but less so in domestic and economic issues

31. Sources of influence on Congress: • Use of media. Media focuses more on a single person than on 535 people. President can easily go directly to the people with his case. “Presidential power is the power to persuade” –Neustaedt • “Mandate from the people” after winning election by a large margin. • Patronage: • Enables a president to carry out policy his way. • Enables a president to cultivate members of Congress by seeking their input on appointments. • Chief of party role: convincing members of Congress to act in interests of “party unity.” • Personal lobbying of members of Congress. Use of both favors and punishment. • Veto, or its threat. • Presence of a national emergency.

36. Roles of the President Constitutional Roles: • Chief legislator. Powers: • Proposes legislation • Signs laws. Sometimes uses “signing statements” • Gives notice of his interpretation of the law, how he intends to enforce it, or even IF he intends to enforce it. • Critics claim that, in effect, these give the president a line item veto • Vetoes legislation (no line item veto as ruled by SCOTUS [Clinton v. NY, 1998] – separation of powers) • Calls special sessions of Congress • Makes a State of the Union Address to Congress Checks: • Congress need not pass suggested legislation • Congress can override veto with 2/3 majority in both houses

37. Constitutional vs. Rhetorical Signing Statements • In a "constitutional" signing statement, a president will object to a provision of law by directly citing a provision of the Constitution, or by citing a Supreme Court ruling interpreting the Constitution, or by bare assertion (without citation to authority) that the law offends the Constitution or invades the power of the Executive. A president may announce his intent to disregard the law due to claimed constitutional infirmity, or he may announce that he will interpret the law to avoid the constitutional difficulties that he perceives. • By contrast, a "rhetorical" signing statement is ceremonial in nature, and usually praises the wisdom of the law or the lawmakers, or notes the importance of the issue addressed by the law. Or a rhetorical statement may criticize Congress or the enactment without challenging Congress's authority to act. • 34% of President Reagan's signing statements raised constitutional objections

47% of President George H. W. Bush's signing statements raised constitutional objections

18% of President Clinton's signing statements raised constitutional objections

78% of President George W. Bush's signing statements raised constitutional objections

38. X. The Power to Say No: The Imperial Presidency • Charges by Congress that presidential power has grown excessive. Coined by Arthur Schlesinger: The Imperial Presidency (1973). • Response: • economic growth necessitated a strong executive branch. • Congress itself delegated strong powers to the executive branch, especially in the area of foreign policy • Areas of abuse cited by Schlesinger: • Constitutional conflict of Congress’ power to declare war vs. President’s power as Commander-in-Chief Congress has gone along with and funded them, until public opinion turns against operations • Emergency powers: In time of war or emergency, the President assumes great powers.

39. Use of executive agreements rather than treaties. • The former does not require Senate ratification as does the latter. The former are “deals” between the President and the head of another nation. • Executive privilege. • Def: the right of President to not divulge conversations between himself and his advisers. • Presidents claim that if such conversations were not “privileged” advisers would be hesitant to give straightforward advice • Critics claim that Presidents have abused this privilege by claiming it under the guise of “national security” • In U.S. v. Nixon (1974), the Supreme Court stated that Presidents are in fact entitled to executive privilege most of the time, but not in criminal cases.

41. G. Impoundment. • Def: the refusal of the president to spend money that has been appropriated by Congress. In the past, this was done when there was an obvious need, e.g. reducing defense spending after a war ended. • Without a line item veto, Presidents must either sign an entire bill or veto it. As a result, Presidents may be unhappy with funding amounts for certain parts of a bill, and want to withhold such funding.

42. XI. President’s Program. Congress Responds to the Imperial Presidency: a reassertion of congressional authority in mid-1970s. War Powers: passage of the War Powers Resolution of 1973. • President can send troops overseas to an area where hostilities are imminent without a congressional war declaration only under these circumstances: • Must notify Congress within 48 hours. • Must withdraw the troops after 60 days (can be extended by 30 days if safety of troops requires it) • Must consult with Congress if troops are to engage in combat. • Congress can pass a resolution, not subject to presidential veto, to withdraw troops. • Criticisms: • Unconstitutional: usurping President’s authority as Commander-in-chief • Ties the hands of President • Makes it easy on the enemy (wait it out)

43. Emergency Powers: National Emergencies Act of 1976 Congress and the CIA • President must inform Congress in advance of powers to be used as emergencies • State of emergency automatically ends after 6 months • President can declare another 6 months, subject to Congressional review • Past CIA abuses led to investigations and oversight committees in 1970s • Foreign Intelligence Surveillance Act (1978): established FISA court to authorize electronic surveillance of telephones, etc. for foreign intelligence purposes.

44. Impoundment Confirmation of presidential appointees • Passage of Budget and Impoundment Control Act of 1974: • If President impounds funds temporarily (deferral), either house can override. • If president impounds funds permanently (rescission), the act is automatically voided unless both house of Congress approve within 45 days. • Established CBO as a check on OMB. • Congress given three additional months to consider the President’s proposed budget. • Established Budget Committees in each house. • Senatorial courtesy • Controversy over recess appointments (NLRB case) • “rule of fitness” seems no longer sufficient, now its policy preferences • Long confirmation delays (holds)

45. Legislative Veto • Congress passed a law, then the relevant executive agency issued regulations to enforce the law, then Congress could analyze those regulations and veto them if it so desired. • A way to force the bureaucracy to conform to congressional intent • In INS v. Chada (1983) the Supreme Court declared the legislative veto to be an unconstitutional violation of separation of powers. • 1996: Congressional Review Act allows Congress to repeal regulations with approval of President. Congress can still use legislative veto if agency does not challenge its use, or can use other powers (funding) to exert influence over agencies.

46. XII. Presidential Transition: The Vice President • Only two constitutional duties: • Become President or Acting President if the office of President is vacant • Preside over the Senate; voting only in case of ties. • Traditionally, the job is a dull, do-nothing one. • Job of VP is what the President says it is: often involves unappealing work. • VP is often selected to balance the ticket. • Importance of the office: • 9 of 44 Presidents have not finished their terms of office. • VP can become Acting President if President becomes disabled. (25th Amendment). • More recently, Presidents have made more effective use of the VP, especially Bush-Cheney, but also Reagan, Clinton) • Can be a steppingstone to the presidency

47. Foreign affairs. • Use of appropriations power to influence foreign policy in the 1970s-80s • Iran-Contra hearings 1980s • Debate over US involvement in the Gulf War. Bush got congressional approval for US action. Congress funded US intervention in Kosovo (1999) • Congressional support for war on terror • Criticism, but passage of Patriot Act and secret domestic surveillance programs of NSA without going through FISA court for prior approval. • Snowden controversy (2013) and government surveillance with FISA approval.