government ch 5

7/29/2019 Government CH 5

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5 The Presidency

Learning Objecves

By the end of this chapter, you should be able to do the following:

Describethesourcesofthepresidentspowerandauthority

Explainthebasisofexpandingpresidentialpowerovertime

Analyzethedifferencebetweenadomesticandforeignpolicypresident

DescribetheorganizationoftheWhiteHouse

Analyzetheroleofpresidentialcharacterinchoosingapresident


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CHAPTER 5Introduction

In March 2011, an alliance o NATO countries, including the United States, launched airstrikes against Libya in a humanitarian mission to assist rebels ighting against Libyanstrongman Moammar Gadhai. In justiying American involvement, President Obamainsisted that the United States was only part o a broad coalition. As operations reachedthe three-month point, questions arose about the legality o American involvement.

The Constitution states that only Congress has the authority to declare war, but it also obli-gates the president to preserve and protect the Constitution. This obligation has led manypresidents to engage in military acts without congressional authorization or a ormal dec-laration o war. According to the War Powers Act o 1973, a president who dispatches mili-tary units or any reason must ully notiy Congress. Congress then has to either authorizethe operation or demand that the units come home. In the case o Libya, President Obamadid ormally notiy Congress o American participation. However, Republican Speakero the House John Boehner demanded that the president explain the mission beore Con-gress and obtain the bodys authorization to continue action. The president insisted thathe had no obligation to seek authorization because actions in Libya were hostilitiesrather than a war. This response angered many in Congress, who perceived it as splitting

hairs. The War Powers Act does not dierentiate war rom hostilities; rather it requiresnotiication o dispatching military units. But was President Obama really in violation?

As the War Powers Act placed the ball in Congresss court, the House o Representativesvoted down a bill that would authorize the president to continue American involvement.This would imply that the president must bring American orces back to NATO basesand rerain rom any urther action. But Congress also voted down a bill that would cuto unding or the operation, which would have orced the president to cease Americaninvolvement. By allowing unding to continue, Congress appeared to at least tacitly sanctionAmerican involvement. For his part, the president maintained, as all presidents beore him,that the War Powers Act is unconstitutional because it intereres with his role as commander

in chie.

The episode raises severalquestions. The irst is just howmuch authority the presi-dent has to make decisions.Is protecting the innocent inanother country the same aspreserving and protecting theConstitution? And what werethe Framers o the Constitu-tion attempting to accomplish

when they imbued the oiceo the president with the pow-ers o commander in chie?

In this chapter, we will look atthe American presidency andhow it has evolved over time.While the Constitution grantsthe president some ormal

Members o President Obamas administration, Deense

Secretary Robert Gates and Chairman o the Joint Chies o

Sta Adm. Mike Mullen, testifed beore the House Armed

Services Committee on American military operations in

Libya. Some Congressional members contend that U.S.

involvement in this operation violates the War Powers Act.


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CHAPTER 5Section 5.1 Presidential Constitutional Authority

authority, his actual power is limited. In act, to the extent that he has any real power, itstems rom his ability to establish and cultivate it on his own. On the one hand, the Fram-ers did not ully address the issue o presidential power because they were not always surewhat the president would do. But on the other hand, they knew they could not oresee allthe contingencies that might arise that would require the exercise o presidential power.

By being vague on the subject, the Framers let open the door or a president to iner thathe could do something i it was necessary to preserve and protect the Constitution.

5.1PresidentialConstitutionalAuthority

The president o the United States is one o the worlds oremost leaders. However, whenour country was ounded, the Framers let the role o the president largely undeined. TheConstitution establishes the oice and gives its occupant express authority to preserveand protect the Constitution, but it does not say exactly what that means.

Article II o the Constitution speciically establishes the concept o executive power andwho may hold it: The executive Power shall be vested in a President of the United States ofAmerica. The article also establishes his ormal authorities. First and oremost, he is com-mander in chie o the U.S. Armed Forces, a role that is viewed as essential to saeguardthe laws o the land and preserve and protect the Constitution. The president also has theauthority to grant pardons, to veto acts o Congress, and to negotiate treaties. Thus, thepresident might be said to have military power as commander in chie, judicial powerthrough his pardon authority, and diplomatic power through his treaty negotiating author-ity. But at the end o the day, his real power stems rom his ability to convince others thatwhen he decides to exercise any o these ormal authorities, it is absolutely necessary.

Commander in Chief

Section 2 o Article II o theConstitution states that: ThePresident shall be Commander inChief of the Army and Navy of theUnited States, and of the Militiaof the several States, when calledinto the actual Service of theUnited States. In legal terms,this means that the president

must authorize any use oorce by the military. It doesnot mean that he will person-ally lead troops into battle likea medieval European king.The requirement that presi-dents authorize the use oorce establishes the sacredprinciple o civilian control o

President Obama speaks to U.S. Troops in Aghanistan.

Article II o the Constitution specifcally establishes civilian

control o the Armed Forces.


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the armed orces. I the military establishment were equal in power to other institutions,it could easily overthrow the civilian government and thus upend one o the hallmarks omodern democratic governance, the peaceul transer o power.

Civilian control, at least in the early days o the American republic, was assured by the

absence o large standing armies. In act, the Constitution only mentions an army andnavy because when it was written, these were the only two branches that existed. Theywere separate departments, and each was equal to the other. The secretary o war and thesecretary o navy both sat in the presidents cabinet and competed or his attention.

Todays cabinet includes a single secretary o deense, but that position wasnt created untilater World War II, with the passage o the 1947 National Deense Act. Until that global con-lict, the United States called state militiawhat we today know as National Guard Unitsinto national service. (Much o American ighting orces are still made up o National Guardunits. They were called up in 2001 when the nation went into Aghanistan, and again in 2003when it went into Iraq.) Militia members o these units are normally under the command otheir respective governors, but once called, they are under the command o the president.

Use o the state militias or national service was ormally adopted in the Militia Act o1792, which gave the president the authority, in the event or threat o an invasion, tocall into service as many troops rom state militia as would be needed to repel the inva-sion. The president would be able to call upon those militia companies that would bemost convenient to the place o danger or scene o action. This meant that i the coun-try were invaded o the shore o Maine, the president could call on militia companies inMaine, Vermont, New Hampshire, and Massachusetts. Because they would be close tothe place o invasion, they could respond quickly. This would also give the states a rolein the national deense. Instead o having to build national bases in all the states to housea standing army, the army would be ormed as needed. Less than a week later Congresspassed a second Militia Act o 1792, which required each able-bodied white male citizenbetween the ages o 18 and 45 to enroll in the militia o his respective state.

In the twentieth century, the organization o the countrys military orces undamentallychanged. In 1903, Congress passed legislation to organize the various state militias intothe current National Guard system, which was to be administered jointly by the NationalGuard Bureau and the U.S. Department o Deense. With passage o the 1916 NationalDeense Act, approximately one-hal o the United States Armys available combat orcesand approximately one-third o its support organizations were National Guard units.

To call the militia into service during a time o crisis is to rely on civilian deense and todemocratize the sense o sacriice, a concept that still resonates today. As an example,

when the United States went to war with Iraq in 1991, it amassed around 500,000 troopson Iraqs border. Most o these troops were taken rom state National Guard units. TheU.S. certainly could have used its proessional national army, but by calling on state unitsthe president gave all citizens a stake in the outcome.

Pardon Power

Section 2 also grants the president the authority to issue pardons. The president shall havePower to grant Reprieves and Pardons for Offenses against the United States, except in cases of


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Impeachment. This would seem to suggest that the president can pardon anybody whohas committed a crime against the United States, meaning violations o ederal law. It isnot clear that the president can pardon somebody who has violated a state law.

Presidents oten pardon convicted criminals who have already served part o their prison

sentence. The president might issue a partial pardon, which oten amounts to a commuta-tion o a sentence, or pardon somebody who has long been a ugitive rom justice. Presi-dent Clinton, or example, pardoned Marc Rich, a inancier charged with evading $48million in taxes and committing more than 50 counts o raud. Rich had led the countryduring his prosecution and was living in Switzerland.

As another example, in 1974 President Gerald Ford issued a ull pardon to Richard Nixonor Nixons role in the Watergate cover-up, which meant that the ormer president couldnever be charged or crimes related to Watergate. The Nixon pardon was viewed as anattempt to heal a badly divided nation and move orward.

A president does not usually decide on pardons by himsel. Most o the time, he does not

know the person being pardoned. Rather, somebody may apply or a pardon, in whichcase White House lawyers and the Justice Department study the matter and make arecommendation.

Veto Authority

As a check on the power o the legislative branch, the Constitution gives the presidentthe authority to veto bills passed by Congress. Just as in the case o pardons, a vetois oten a collective decision made in the nameo the president. It is oten made in consulta-

tion with various oicials in the White Houseand members o the cabinet whose departmentsmight be aected by a particular piece o legisla-tion. As an example, in February 2011 Congress,ater ailing to pass a budget or iscal year 2011(which began in October 2010) was consider-ing a continuing resolution that would tempo-rarily und the government until a inal budgetwas passed. However, the continuing resolutionwould have appropriated less money to deense.The Oice o Management and Budget, on theadvice o the Deense Department, issued a

statement that President Obama would veto iti there were deense cuts that compromisednational security.

A veto has to be a collective decision becauseit usually has widespread consequences. Onepotential consequence is that it could invite Con-gress to respond, i Congress has the votes, byoverriding the veto. An override is oten seen as ahuge political deeat or a president.

The question o whether presidents

should be able to exercise a line-item

veto dates all the way back to the

administration o Andrew Jackson.


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Table 5.1 Presidenal Vetoes (paral list)

President Regular Vetoes Vetoes Overridden

Washington 2 -

Adams - -

Jeerson - -

Madison 5 -

Monroe 1 -

Jackson 5 -

Pierce 9 5

Lincoln 2 -

A.Johnson 21 15

Grant 45 4

Hayes 12 1

Cleveland 304 2

B.Harrison 19 1

Cleveland 42 5

McKinley 6 -

T.Roosevelt 42 1

Ta 30 1

Wilson 33 6

Harding 5 -

Coolidge 20 4

Hoover 21 3

F.D.Roosevelt 372 9

Truman 180 12

Eisenhower 73 2

Kennedy 12 -

L.B.Johnson 16 -

Nixon 26 7

Ford 48 12

Carter 13 2

Reagan 39 9

G.H.W.Bush 29 1

Clinton 36 2

G.W.Bush 10 3

Obama - -

Source: Office of the Clerk, US House of Representatives: http://artandhistory.house.gov/house_history/vetoes.aspx


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CHAPTER 5Section 5.2 Presidential Elections

The U.S. Constitution, unlike many state constitutions, does not provide or a line-itemveto, so when the president vetoes a bill, he has to veto the entire bill. While a gover-nor, or instance, can get a budget bill rom the state legislature and then veto, say, theappropriations or parks because they are too expensive and the appropriations or schoollunches because he doesnt think they are important, the president has no such option.

The idea o a line-item veto (or item veto), actually dates back to the presidency o AndrewJackson. Jackson sparked a controversy when, in 1830, he signed a bill but also notiiedCongress that he intended to restrict the reach o the statute. Because the House was inrecess, it wasnt able to respond to this notiication. A House report later interpreted thisaction to be, in eect, an item veto o one o the laws provisions.

Treaty Making and Effective War Making Authority

Section 2 also says that the president shall have Power, by and with the Advice and Consent ofthe Senate, to make Treaties, provided two thirds of the Senators present concur. This means thatthe president can make treaties with other countries, but they are not binding on uturegovernments unless they are ratiied by the U.S. Senate. What would happen i the presi-dent negotiated a peace treaty to end a war with another nation, and the Senate ailed toratiy it? The United States would still technically be at war.

In the atermath o World War I, President Woodrow Wilson sought to make the UnitedStates a signatory to the Versailles Treaty, which was the agreement that eectively endedthe war. Part o the treaty was a call or the ormation o a new League o Nations, anintergovernmental organization that would oster peace and international disarmament.Wilson wanted the United States to join this league, but some members o Congress elt itwas not advisable because it could lead to U.S. involvement in conlicts that did not con-

cern the country. When Wilson reused to compromise on any parts o the treaty, the Sen-ate voted against ratiying it. Wilson never recovered politically. When the Senate reusesto ratiy a treaty, it puts the president in a vulnerable position because it can be construedas a sign o weakness. But there is a danger or the nation in this as well. Another country,sensing a presidents weakness, may view it as an opportunity to wage war against theUnited States.

5.2PresidentialElections

In addition to stipulating some o the powers o the presidency, Article II also sets orth

guidelines or how and how oten a new executive shall be elected. For example, it statesthat the president shall hold office during the term of four years.

Presidential elections tend to be momentous events in American history. They take placein two distinct phases. First there is the primary season, which oten begins around Janu-ary o a presidential election year. Through a series o races run on a state-by-state basis,delegates are chosen to attend party nominating conventions. Following the conventions,the oicial nominees or president begin campaigning or the general election that isalways held on the irst Tuesday ollowing the irst Monday in November.


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Presidential Primaries

Although the primary sea-son begins in January, thoseseeking the presidency oten

begin their quest as early astwo years beore a nationalelection. Candidates maydeclare their intentions to runa year in advance o primaryseason. During this time theytravel around the countryand meet ordinary voters,state party chairs, and poten-tial donors. The process orunning or oice entails a loto such retail politics.

The season begins in earnestwith the Iowa Caucus, whichis a participatory caucus. Indi-

viduals gather or a ew hours at a local meeting place and move to a section o the roomdesignated or their avorite candidates supporters. During this process they can be chal-lenged by another candidates supporters. At the end o the exercise, the number o del-egates apportioned to a candidate is based on the percentage o support they have.

Iowa does not produce many delegates, but, as the irst state in the primary season, itprovides momentum going into bigger contests. The next contest is traditionally the NewHampshire primary, which is an election rather than a caucus. Again delegates are appor-

tioned based on the percentage o the vote that each candidate receives.

A candidate who wants to win the nomination o his party must win either the Iowa cau-cus or the New Hampshire primary. The reason or this is simple: money ollows winners.Candidates who win either o these contests are able to draw signiicant contributions,which in turn enable them to spend considerable money on advertising in bigger conteststhat produce more delegates. Those who do not are well early in the season usually indit diicult to raise money and are orced to drop out. Raising unds is critical because asuccessul candidate can end up spending $50 million$100 million. Oten, the big statesthat produce the largest number o delegates, like New York and Caliornia, do not havetheir primaries until relatively late in the season. By this time the ield o candidates has

narrowed to two, and sometimes one.

The irst part o the presidential election season ends during the summer o the electionyear with party nominating conventions, whereby each party chooses a nominee. Thenominees are usually the ones who obtained the most delegates. The oicial campaign orpresident then begins in September o the election year.

Iowa democrats participate in a caucus to choose their candi-

date or the 2004 presidential election.


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The Electoral College

The president is ultimately elected by the Electoral College, which is made up o electorsrom each state. The number o electors each state is allotted is dictated in Article II: EachState shall appoint, in such manner as the Legislature may direct, a number of electors, equal to

the whole number of Senators and Representatives to which the State may be entitled in the Con-gress; but no Senator or Representative . . . shall be appointed an elector. There are a total o 538electoral votes cast (including three or the District o Columbia), and a candidate needsa simple majority270to win. For most states, the candidate who wins a majority ovotes in that state takes all o its electors. The only exceptions are the states o Maine andNebraska, which split their electoral votes in proportion to the popular vote.

Each candidates party goes to each state and signs up a slate o electors who are thenpledged to vote or that candidate. As an example, New York casts 31 electoral votes. In

Numbers indicate

electoral vote

OR

CA

FL

MS

CO

3

3

3

5

3

4

10

21 5

4

6

10

7

11

11

8

11

5

7

17 21

20

27

4

55

31

11

6

3

9

7

5

13

VT

NH

RI

CT

9

6 9

8

15

15 D.C.MD

NJ

DE

MA

34

10

3

4

47

310

15

3

12

4

Obama

McCain

1

Obama

McCain

365

173

MT

WY

AZ

NV

ND

NE

MN

ILWV

ME

AR

WI

IA

MO

TN

KY

WA

UT

OK

MI

PA

OH

FL

ID

CA

IN

KS

SD

CO

OR

NM

VA

LA

MSAL

SC

GA

NC

TX

NY

AK

HI

Figure 5.1: Electoral College Map of 2008 Elecon

The ounding athers established the Electoral College as a compromise between election o

the president by Congress and election by popular vote.


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2008, both John McCains andBarack Obamas campaignssigned up slates o 31 elec-tors each in the state. BecauseObama won the popular vote

in New York, his slate votedin the Electoral College andMcCains slate went home.Because most states employ awinner-take-all system, a can-didate could conceivably wineach state by the narrowest omargins, say 50.5% to 49.5%,and still win by a landslide inthe Electoral College.

In choosing where to invest

resources, candidates usuallypick states with close races.They tend not to spend too

much time or money in states where they are already likely to win. Because minoritygroups, whether racial, ethnic or religious, tend to be concentrated in large, electorallyrich states, the electoral system provides representation or these groups that they other-wise might not enjoy. I they vote as a group, they can orm a voting bloc that can make orbreak the state or a candidate.

Still, there are those who maintain that the Electoral College system is not very demo-cratic. It rarely happens that one who wins the popular vote loses the Electoral College,but it has happened, and the result was typically ill eelings. In the presidential electiono 1876, Samuel Tilden, a Democrat rom New York, won the popular vote over Repub-lican Rutherord B. Hayes rom Ohio. The Electoral College, however, was in questionbecause Florida, Louisiana, and South Carolina each sent two sets o electoral votes toCongress. Then in 2000, Vice President Al Gore won the popular vote over RepublicanTexas Governor George W. Bush. Gore was leading in the Electoral College, but onestate was in dispute, Florida. Without Florida, neither one would have the needed 270electoral votes to win, but with Florida either one would be put over the top. There wereissues o absentee ballots and how votes were being counted. Ater several recountsand an order rom the Florida Supreme Court to have a ull recount, the U.S. SupremeCourt ordered the recounting to stop, thereby handing Florida over to Bush. Ater morethan a month, Gore conceded deeat, but many in Florida, especially minorities, elt that

their votes were not counted. This election especially let a sour atertaste because itappeared as though the U.S. Supreme Court, or the irst time in American history, wasdeciding the outcome o a presidential election. Many also believed that Bush in eectstole the election.

As leader o the Senate, Al Gore presided over the electoral

vote count that named George W. Bush the victor in the 2000election.


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CHAPTER 5Section 5.3 Two Presidencies

5.3TwoPresidencies

The president o the United States is the most important political leader in the country.When the president speaks, the words carry weight and have inluence. But the presi-dents inluence is not even in all policy realms. Political scientist Aaron Wildavsky

amously observed that rom a political standpoint, the nation is usually led by two presi-dents embodied in one person. One is a domestic policy president who tends to be weak,and the other is a oreign policy president who tends to be strong.

Domestic Policy President

In the realm o domestic policy, Congress tends to be dominant because Americans tendto be more concerned about issues closer to home than they are about issues abroad. Youmay have heard about ormer Speaker o the House Tip ONeills amous observation thatall politics is local. Because most members o Congress are elected and reelected on the

basis o local issues and their ability to deliver goods back to their districts, Congress isreluctant to deer to the president on those domestic issues. On the contrary, i a presiden-tial agenda intereres with the interests o a members constituency, that member is likelyto vote against the president even i he is o the same political party.

A domestic policy president is also reined in by changes in the composition o Congress.It is not uncommon or presidents to sustain midterm losses in their party. This weakensa presidential mandate, a perception that he can do almost whatever he wants becausehe won election in the irst place by a wide margin. Additionally, those who remain areanxious about the next election and, as a result, are less likely to be supportive o thepresidents agenda. In the midterm election o 2010, President Obamas party lost over60 seats in the House o Representatives, and its majority in the Senate was signiicantly

narrowed. While the end result may be gridlock, it may also be viewed as an assertion oconstitutional checks and balances.

Still, the president is increasingly expected to play more o a role in domestic policy. Dur-ing economic recession, when more people are out o work, we tend to hold the presi-dent responsible and expect that he will pursue policies that create jobs. During the GreatDepression President Franklin D. Roosevelt actively pursued policies to get the nationback to work. Following World War II, Congress passed the Employment Act o 1946,which speciied a greater role or the president in economic policy. The act established thatthe U.S. government would strive to achieve as high a level o employment as would bepracticable. To that end, the law established the new oice o the Council o EconomicAdvisors, a group that would monitor the economy and prepare reports that the presi-

dent would annually submit to Congress. As we saw in the last chapter, the Budget andAccountability Act o 1921 gave the president responsibility to submit uniied budgets toCongress. This meant that the president and his sta would be involved in planning thebudget and, by extension, establishing the nations domestic policy priorities.

The president was to increasingly have more o a voice in domestic aairs as his ability toappoint oicials, even to independent regulatory agencies, meant that he would be ableto appoint those who were sympathetic to his policy priorities. In Article II, Section 3, othe Constitution it says that the president shall take Care that the Laws be faithfully executed,


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CHAPTER 5Section 5.3 Two Presidencies

and shall Commission all theOfficers of the United States.This means that the presidentis responsible or carrying outlaws and implementing poli-

cies and programs that havebeen passed. As this respon-sibility alls on the president,the presidents role in domes-tic aairs only grows as Con-gress creates more programs,especially when power andauthority (also discussed inthe last chapter) is delegatedto the executive branch.

Even though the Constitution

does not give the president a ormal role in the legislative process, other than to sign ornot sign legislation, his ability to veto legislation does allow him to inluence the process.A public announcement that he will veto something is oten suicient to orce Congress topresent him with legislation that, at the very least, he doesnt ind objectionable.

Foreign Policy President

In the realm o oreign aairs, presidents are usually strong and can oten actwith ewercongressional constraints. There are several reasons or this. First and oremost, the presi-dent is the ace o the nation when dealing with other countries. When it comes to nego-

tiating treaties, or instance, there can only be one president, not 535. Even though trea-ties are subject to the advice and consent o the U.S. Senate, senators tend to deer to thepresident on them because o the need or the country to speak with one voice. Secondly,oreign aairs dont usually aect the way Americans live their lives rom day to day, andthereore most people tend not to care about them as much. A Congress that deers to thepresident in oreign policy is thereore not perceived as shirking its representative unc-tion in the way that a Congress that deers to the president in domestic policy might be.

Finally, most o what the Constitution says about the presidents authority pertains tooreign policy, whereas most o what it says about the authority o Congress pertains todomestic policy. Similarly, with the ederal division o power and authority between thestates and the national government, the Framers assumed that states would naturally

be responsible or domestic policy and the national government would be responsibleor oreign aairs. The Constitution clearly assigns the president, not Congress, to becommander in chie o the armed orces. The president also has the express authorityto conduct oreign aairs by appointing and maintaining ambassadors and counselorsabroad, and the express authority to negotiate treaties with other countries. Congresscan hold hearings and request reports rom the president, but it does not have muchoreign policy authority other than to ratiy already negotiated treaties, raise armies andormally declare war.

President Obama, with his Council o Economic Advisors

behind him, speaks on fnancial reorm in the wake o the

economic downturn o 2008.


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CHAPTER 5Section 5.4 Presidential Prerogative

Arguably, declaring war and raising armies go hand in hand with Congresss primarypower o the purse. A declaration o war would require raising an army to wage thatwar, which in turn would require a congressional appropriation. A president who wouldwage war without the approval o Congress would, in eect, be spending money he isnot authorized to spend. Still, much o the presidents more expansive powers in oreign

aairs is derived rom what is known as presidential prerogative.

5.4PresidentialPrerogative

Presidential prerogative is essentially an implied power that enables a president to expandhis authority in ways not speciically stated in the Constitution. It is similar to Congresssnecessary and proper clause, but it is also dierent. In the case o Congress, the Constitu-tion states that Congress may do what is necessary and proper to exercise its enumeratedpowers. In the case o the president, the Constitution says no such thing; rather the presi-dent iners that in the absence o a speciic grant o authority or prohibition that he may

do something to ulill his larger constitutional obligations. Presidential prerogative, likepresidential power generally, has historically been let to individual presidents to deine.

Thomas Jefferson and the Louisiana Purchase

In 1803, President Thomas Jeerson purchased the Louisiana Territory rom France oraround $15 million. He had no congressional authorization to take such action, and it couldhave been considered an impeachable oense. (Recall rom the last chapter that impeach-ment is generally deined as high crimes and misdemeanors, which is taken to be thepresidents abuse o power in that he took action either without Congressional authoriza-

tion or against the will o Con-gress. A high crime and mis-demeanor can also reer to thepresident usurping Congres-sional power by perorming aunction speciically reservedto Congress.) By making apurchase without an expresscongressional authorization,Jeerson could be interpretedas eectively usurping Con-gresss power o the purse.

Jeerson thought that it wasacceptable to assume author-ity beyond the bounds o thelaw in matters o higher neces-sity. As he put it, A strictobservance o the written lawsis doubtless one o the highest

Thomas Jeerson exercised presidential prerogative when

he purchased the Louisiana Territory rom France without

the authorization o Congress. Jeerson believed his actions

would help save the country by allowing its citizens to stave

o the inequalities o industrialization.


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duties o a good citizen, but it is not the highest. The laws o necessity, sel-preservation, osaving our country when in danger, are o higher obligation. I the country were lost, thewritten law would have no meaning. Jeerson saw that the nation was threatened by indus-trialization and the consequences that it would have on agriculture. He believed that theLouisiana Territory would enable citizens to spread out, settle the land, become indepen-

dent yeoman armers, and stave o the inequalities o industrialization. By that reasoning,purchasing Louisiana, even i he did not have authority to do so, was necessary to save thecountry.

Abraham Lincoln and the Emancipation Proclamation

In 1863, during the American Civil War, President Lincoln issued his amous Emancipa-tion Proclamation, which granted reedom to the slaves who were in Conederate terri-tory. Technically, this move was unconstitutional. For the slaves to be reed legally, theConstitution would have to be amended, but Lincoln issued his proclamation as a mattero presidential prerogative.

The Emancipation was an executive order and had no binding authority except in thoseConederate states that had allen under Union control, which also meant that as theUnion army advanced, more slaves would be reed. A constitutional amendment wouldhave required a two-thirds vote in each house o Congress, and then three-quarters o thestates to vote in avor. As a practical matter, those states that seceded rom the Union werenot going to participate in the amendment process, as they no longer considered them-selves to be bound by the U.S. Constitution. Even i three-quarters o the remaining stateso the Union had ratiied an amendment abolishing slavery, it would have no orce andeect in territories not occupied by the Union.

As Lincoln put it, My oath to preserve the Constitution to the best o my ability, imposedupon me the duty o preserving, by every indispensable means, that governmentthatnationo which that constitution was the organic law. Lincoln argued that he couldundertake any action to preserve the Union because that was the only means by whichthe Constitution could be preserved and protected, and this was precisely what he sworeto uphold when he took his oath o oice. Just like Jeerson, Lincoln was saying that i thecountry were destroyed because o a rigid adherence to written law, the law would haveabsolutely no meaning and the Constitution would eectively be rendered a worthlesspiece o paper.

Teddy Roosevelt and the Regulation of Trusts

Until Theodore Roosevelt was president at the beginning o the twentieth century, presi-dentswith the exceptions o the unusual circumstances described abovewere or themost part passive. Congress made policy, and presidents and the executive branch carriedout its will. The activist presidency began with Roosevelt, who came to oice in 1901, andrevolved around the authority o the executive branch to regulate trusts. Toward the endo the nineteenth century, corporations were buying up smaller companies and ormingtrusts in restraint o ree trade. The only remedy, it seemed, was to regulate the trusts and,i necessary, break them up.


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Roosevelt adopted this stance, and he workedtirelessly to regulate business combinations andbreak up the great railroad trust in the Northwest.For his eorts, he earned the nickname, the trust-buster. While the Constitution speciically grants

Congress the authority to regulate interstate com-merce, it does not say that the executive cannotregulate or that the president himsel cannot beactivist. President Roosevelt justiied his preroga-tive to act on the grounds that he was a stewardo the people and was thereore bound to servethem. As he put it, I declined to adopt the viewthat what was imperatively necessary or thenation could not be done by the President unlesshe could ind some speciic authorization to do it.My belie was that it was not only his right but hisduty to do anything that the needs o the nation

demanded, unless such action was orbiddenby the Constitution or by the laws. Rooseveltechoed John Locke, but he took Lockes ideas astep urther. The country did not merely haveto be in a state o emergency or the president toexercise his prerogative. Rather, he could do so onthe basis o what he thought would be necessaryto serve the public interest.

George W. Bush and the War on Terrorism

Following the terrorist attack o September 11, 2001, President George W. Bush declareda war on terrorism. In making this declaration, he made it clear that the United Stateswould go ater terrorists around the world as well as those countries that harbored ter-rorists. This initially led to war in Aghanistan because that was where terrorist trainingcamps were located, and then to war in Iraq on an assumption that it too was supportingterrorism. The War on Terrorism was actually uncharted territory because a declarationo war usually involves Congresss authorizing the use o orce against another nationstate. Bush, in contrast, declared war against nontraditional, non-state actors. As in ourprevious examples, he justiied his action as a legitimate exercise o presidential pre-rogative because o his presidential obligation to preserve and protect the Constitution.The United States, ater all, was attacked. Previous terrorist attacks against U.S. interests,

including the irst attack against the World Trade Towers in 1993, were treated as criminaljustice matters. The 2001 attack, however, was o a dierent magnitude. More than 3,000innocent civilians died, probably the largest number killed on American soil since theCivil War. Again, the Constitution does not say that he cannot act. Moreover, as all thesecases demonstrate, there was suicient precedent or the president to claim prerogative.

As part o the War on Terrorism, Congress passed the Patriot Act, which allowed ederallaw enorcement oicials to arrest those suspected o terrorism and hold them indei-nitely without trial. In most cases, the FBI would round up several thousand Muslims and

President Theodore Roosevelt opted

to exercise prerogative in regulating

trusts because he believed he was the

steward o the people and was there-

ore bound to serve them.


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CHAPTER 5Section 5.5 Political Power

then release them a couple oweeks later ater it determinedthey were not terrorists. Inthe meantime, the detaineescould not have access to a

lawyer, and even i their ami-lies contacted one, lawyerswere not allowed to knowwhat charges were beingiled. In eect, one could bedetained without the basicconstitutional rights that wetake or granted: the rights toknow what charges are beinglevied, the right to ace ouraccusers, the right to a trial byjury, and the right to be repre-

sented by counsel.

Critics o the War on Terrorism were quick to point out that in the name o protecting thecountry, the government was eectively undermining the basic constitutional principlesthe nation was ounded upon. They also noted that the War on Terrorism was so broadthat it could be endless and that anything that was deined as terrorism would allow ora broad expansion o executive power. Deenders o the War on Terrorism argued that theneed or national security justiied drastic measures and that sacriice and inconveniencewere required. In other words, it was a matter o the public interest.

5.5PoliticalPower

As we noted earlier, the powers o the president are ormally undeined, but presidents,employing the principle o presidential prerogative, have carved out their own powersas they have needed. The eect has been to expand the scope o presidential power overtime. Historian Arthur Schlesinger argued that through the use o presidential preroga-tive, particularly during periods o emergency, American presidents have in eect becomeimperial. But there is also a political component to presidential power. The president stillhas to persuade others that his actions are legitimate.

Power as Persuasion

Nearly ity years ago Richard Neustadt, a proessor o government at Harvard and a or-mer aid in John F. Kennedys White House, deined presidential power as the power topersuade. The president is surrounded by aides who have stature in their own right and areunder no obligation to obey orders. Likewise, members o Congress are elected indepen-dently o the president, and the president has no control over them. All the president can do

President George W. Bush speaks in support o the 2003

Patriot Act, which was enacted as part o his War on Terror-

ism. The act allowed ederal law enorcement to arrest

those suspected o terrorism and hold them indefnitely

without trial.


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CHAPTER 5Section 5.6 Presidential Organization

is attempt to convince others that his ideas are the correct course o action. A president whocan get others to do what he wants through persuasion can be said to truly possess power.

Neustadt oers several examples o presidential power, but he illustrates his point espe-cially well with a case where a president had to use orce because he ailed to persuade.

In 1952, while the nation was in the midst o the Korean War, President Truman seizedthe countrys steel mills in response to a labor dispute between the United Steel workersand major steel companies. With a strike set or April 9, 1952, labor and public memberso the Wage Stabilization Board, which was in charge o wage control and allied unctionsduring the war, came to an agreement; but it was rejected by the companies. The WhiteHouse tried to press both the companies and the Union toward a settlement. Collectivebargaining was resumed but no settlement was reached. To avoid a disruption in produc-tion while the nation was at war, Truman seized the steel mills. The companies sued, andthe case ultimately reached the Supreme Court. The Court held the seizure to be a viola-tion o the Fith Amendment.

To Neustadt, Trumans ailure to persuade proved his weakness. The act that he resorted

to command meant that he ailed to convince through the art o persuasion. Had he beenable to persuade, he would truly have had power. At the end o the day, presidentialpower through persuasion is about the presidents political abilities.

The Importance of Public Support

A presidents ability to persuade will be enhanced i he is popular among the public andhis party happens to be the majority in Congress. Popularity is important because he canalways point to it as a reason why critics should not be so quick to dismiss what he hasto say. Party support in Congress is also important because he can always appeal to party

loyalty to orward his agenda. His ability to persuade members o his own party in Con-gress is also enhanced by his ability, especially i he enjoys widespread public support, tocampaign on their behal or reelection.

But a presidents ability to persuade can easily be hindered by a drop in public supportor by signiicant congressional midterm election losses in his own party. It is not uncom-mon or the presidents party in Congress to suer losses during a midterm election, andthese losses are oten taken as a rejection o the presidents previous two years o gov-erning. President Bill Clinton, who was elected in 1992 with Democratic majorities, lostboth houses o Congress in the 1994 midterm election. In the House o Representatives,his party lost ity seats. These types o losses make it more diicult or a president topersuade.

5.6PresidentialOrganization

The Constitution only provides or an executive. It says nothing about a cabinet or a WhiteHouse sta. When George Washington was president, he had a handul o sta members.By the time Franklin Roosevelt took oice in 1933, his sta was around eight. Today, there


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are more than 2,000 members o the presidents sta. These positions and oices wereounded and developed over time to help the president ulill speciic unctions.

Cabinet

The presidents cabinet is composed o the heads o executive branch departments, mosto whom carry the title o secretary. The term was coined by newspaper reporters duringGeorge Washingtons presidency to reer to his our department heads: the secretary ostate, the secretary o treasury, the secretary o the army, and the attorney general. Todayit includes secretaries o Commerce, Energy, Transportation, Deense, Labor, Interior,Health and Human Services, Housing and Urban Development, Agriculture, Education,and most recently, Homeland Security. Presidents have also in recent years granted cabi-net status to the vice president and the ambassador to the United Nations.

The role o the cabinet is largely undeined. A president may seek the counsel o his cabi-net and call or regular meetings. More oten than not, a president uses the cabinet todemonstrate that he is not acting alone. Cabinet members are oten individuals who havebuilt up reputations in their own right. But oten, presidents take the advice o staers inthe White House over cabinet members.

Executive Office of the President

The Executive Oice o the President (EOP) consists o immediate sta members report-ing directly to the president and multiple levels o support sta. It is generally headed bya White House chie o sta. The EOP has its origins in 1936 when President Rooseveltestablished a Committee on Administrative Management to evaluate administrative pro-

cedures in the executive branch. The concern was that the business o government hadbecome so vast that it was too much or one man to oversee.

Table 5.2 Divisions within the Execuve Oce of the President

CouncilofEconomicAdvisors

CouncilonEnvironmentalQuality

NaonalSecurityCouncilandtheHomelandSecurityCouncil

OceofAdministraon

OceofManagementandBudget

OceofNaonalDrugControlPolicy

OceofScienceandTechnologyPolicy

OceoftheUnitedStatesTradeRepresentave

OceoftheVicePresident

ExecuveResidence

TheWhiteHouse

Source: Executive Office of the President:http://www.whitehouse.gov/administration/eop
http://www.whitehouse.gov/administration/eophttp://www.whitehouse.gov/administration/eop


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The original EOP, ormally created by executive order in 1939, was to consist o sixadministrative assistants to the president, along with three advisory bodies: the NationalResources Planning Board, the Liaison Oice or Personal Management, and the Oice oGovernment Reports. By the time Jimmy Carter took oice in 1977, the EOP had around1,700 ull-time sta members. Today the EOP consists o the president, plus eleven other

councils and oices (see Table 5.2). The EOP also contains the White House Oice, whichincludes the presidents immediate sta o advisers.

White House Staff

The White House sta is madeup o analysts and advis-ers, such as communicationsadvisers, political advisers, thepress secretary, speech writers,legislative aids, and the WhiteHouse physician. These areusually people the presidentcan trust. Unlike cabinet mem-bers, a staer does not need tobe conirmed by the Senate.

The White House staers areorganized within several oice

Table 5.3 Expanding White House Sta*

Year President Full-me Employees

1937 FranklinRoosevelt 45

1947 HarryS.Truman 190

1957 DwightD.Eisenhower 364

1967 LyndonB.Johnson 251

1972 RichardM.Nixon 550

1975 GeraldR.Ford 533

1980 JimmyCarter 488

1984 RonaldReagan 575

1990 GeorgeH.W.Bush 623

1996 BillClinton 511

2004 GeorgeW.Bush 417

*These figures are for the Office of the President, the Executive Residence, and the Office of the Vice President.

Source: for years 19371990, Table 7.6 in Theodore J. Lowi and Benjamin Ginsberg, American Government: Freedom and Power Second

ed. (New York, W.W. Norton & Co., 1992), 284; for 1996 Figure 6.3 in Theodore J. Lowi, Benjamin Ginsberg and Kenneth Shepsle, American Government: Power and Purpose Eight Edition, (New York, W.W. Norton & Co., 2005), p. 249; and for 2004 United States Office

of Personnel Management, Federal Civilian Workforce Statistics: Work Years and Personnel Costs Fiscal Years 2004, Table 1a, p. 10.

White House staers gather outside the White House. Since

1937, the White House sta grew rom 45 employees to 417

under George W. Bush.


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CHAPTER 5Section 5.7 Wartime President

units, which also employ additional sta members. Table 5.3 shows only those who immedi-ately serve the President, or those who work in the White House West Wing, but i the tableincluded members o the EOP, the number o sta would be close to a couple o thousand.The White House sta also includes temporary people who are sent over rom other Execu-tive Branch agencies and departments to work in the White House.

5.7WartimePresident

We have already noted that oreign policy presidents tend to be stronger than domesticpolicy presidents. During times o war, however, it has not been uncommon or Americanpresidents to assume greater authority and claim greater power. In some cases, wartimepresidents have been almost dictatorial. As we saw earlier in the chapter, this usuallybegins with presidents exercising their prerogative. Add to that a tendency on the parto Congress to deer to the president on oreign policy-related matters, and a president,especially during a time o crisis, oten has ree rein to do as he pleases.

Even when wartime presidents have been challenged legally, the Supreme Court hastended to claim that the issue is political and does not concern them. The principal reasonthat the Supreme Court has taken this position is because it knows that during a crisis apresident is unlikely to listen, and the Court lacks enorcement power. Historically, whenthe crisis has ended and the country is no longer acing threat, the Supreme Court hastended to reassert the constitutional separation o powers.

Imperial Presidency

We noted earlier Arthur Schlesingers argument that the historic use o presidential preroga-tive, coupled with a tendency to deer to the president in oreign aairs, has at times led to animperial presidency. By this he meant a president who assumes he can do what he pleases,whether it is because he can claim that there is a crisis and subsequent need to exercise author-ity, or because he won the election by such a large margin that he can claim a mandate.

Schlesinger was speciically thinking o Richard Nixon, who amously observed in an inter-view with David Frost that i the president does something, it is legal. It was not uncom-mon or Nixon to invoke a national emergency to justiy the exercise o his prerogative. Atother times he would call attention to a silent majority o people who supported him butwere not vocal, thereby suggesting that a Congress that opposed him did so at its own peril.

In truth, Nixon wanted to act according to the French concept o a plebiscitory presi-dency. A plebiscitory president assumes that so long as he is operating within the law hecan do as he pleases because he was elected and the people empowered him to do so. Ithe people do not like what he has done, they are always ree to vote him out o oice. Buti they reelect him, and they do so by a large majority, that only conirms that his actionshave been correct and he has the power, i not even more power, to continue doing as hepleases. Nixons comment to David Frost might suggest that he believed that the presidentmakes his own law. However, Nixon understood that he couldnt make himsel a dictatorand remain in oice indeinitely. Rather, the limits to his authority were public tolerance,


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as expressed through Congress. But he also under-stood that tolerance was greater in speciically or-eign policy-related emergency situations.

Wartime Dictatorship

During times o war, American presidents havedeclared martial law on a limited basis. AbrahamLincoln did it in certain sections o the countryduring the Civil War, and Franklin Roosevelt didit in Hawaii during World War II. Areas undermartial law are governed by military authorities,with military courts in the place o civilian ones.

During the Civil War, Lincoln placed Conederateterritories that ell to the Union under military ruleand ordered the arrest o people who were believedto be causing insurrection. I they were to be triedat all, it was only to be by military tribunal. Privatehomes were routinely searched without warrant,and men were imprisoned without trial.

Moreover, in the case oEx Parte Merryman, Lin-coln eectively ignored a judicial opinion. John Merryman was a pro-Conederate lieu-tenant in the Maryland Militia and was involved in recruiting and training soldiers orthe Conederacy as well as cutting telegraph wires and blowing up rail lines on bridges.Because Maryland was close to the nations capital in Washington, which was under

constant threat, Lincoln declared martial law there. Union soldiers arrested Merrymanor treason. Through an attorney he requested a writ o Habeas Corpus. Technically ademand by a court or the jailer to produce the accused and announce the charges, wecommonly understand the concept to mean that an accused person has a right to know thecharges made against him. Merrymans attorneys appealed to the United States CircuitCourt or the County o Maryland, which in those days did not have permanent judges.Instead, Supreme Court justices sat in the circuit while the Supreme Court was not in ses-sion. The justice willing to hear this case was Chie Justice o the United States SupremeCourt Roger Taney. Taney issued the writ o Habeas Corpus and sent a ederal marshal todeliver it, but Union soldiers stopped him. In response, Taney issued his own opinion orthe Circuit Court condemning Lincoln or his abuse o power. Still Lincoln did not budge.Taneys opinion was his own opinion, and it is an open question how the ull Supreme

Court would have ruled had it gone that ar.

Another incident involving the Supreme Court occurred during World War II, when Presi-dent Franklin Roosevelt ordered the quarantine o Japanese Americans. Suspected o beingloyal to Japan, they were rounded up in Caliornia, Washington State, and Oregon andbrought to what were essentially detention camps. These were American citizens whoseonly oense was that they were o Japanese ancestry. But the case oHirabayashi v. UnitedStates in 1943 demonstrated the Supreme Courts willingness to deer to the president dur-ing war time. Gordon Hirabayashi was a student at the University o Washington who

In a 1977 interview with David Frost,

ormer President Richard M. Nixon

explained his view o the imperial

presidency. He said that i the presi-

dent does something, it is legal.


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never had visited Japan andwas never suspected o dis-loyalty to the United States.Nevertheless, he was con-victed o disobeying a military

curew. The Court ruled thatthe curew was a legitimatedeensive measure during atime o war. Because Ameri-cans o Japanese ancestryregularly communicated withamily members in Japan, theCourt argued, authorities hada reasonable basis to concludethat certain individuals mightconstitute a security threat.

But ollowing the war, in the1946 case Duncan v. Kah-anamoku, Sheriff, the SupremeCourt was not nearly as readyto deer to presidential power.

This case involved the eective declaration o martial law in Hawaii ollowing the Japaneseattack on Pearl Harbor. A military court convicted Lloyd Duncan, a civilian shipitter, oassaulting two navy yard sentries in 1944. But by that date the war was almost over andthecivilian courts had reopened. In this case, the Supreme Court made it clear that theAmerican system o government was the antithesis o military rule. I the civilian courts hadalready reopened, it ruled, there was no excuse to try him in a military court. The SupremeCourt proved eager to reassert the Constitution and Bill o Rights once the crisis was over.

Use of Military Tribunals

During times o emergency, many American presidents have sought to use military tri-bunals to try enemy combatants. This issue is actually quite current. Following the 9/11terrorist attacks and the launching o war in Aghanistan, the question arose about whatto do with enemy combatants captured by American soldiers. According to the GenevaConvention on war, captured enemy soldiers are to be considered prisoners o war andheld in prison camps until the end o the conlict, at which point they are to be sent home.Suspected terrorists, however, are neither soldiers, as they are not ighting or a nation

state, nor civilians. Can they be tried in military courts? Critics argue that to do so wouldnot only violate the Geneva Convention, but is also contrary to the basic protections guar-anteed by the Constitution. Deenders o the policy point to precedent, the most notablebeing Ex Parte Quirin in 1942.

This case involved our German marines who came ashore on Long Island, New York,rom a submarine with orders to sabotage American war industries. Ater changing intocivilian clothes and burying their uniorms and explosives, they headed to New YorkCity. Several days later, another our marines came ashore in Florida with similar orders.

The Japanese internment camp at Manzamar, Caliornia, in

1943. The Supreme Court ruled that certain individuals oJapanese ancestry might constitute a security risk, and there-

ore orcing them into internment camps was a legitimate

wartime action.


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The leader o the New York group then deected to the FBI and the remaining seven wererounded up, tried, and convicted by a military commission specially appointed by Presi-dent Roosevelt under a broad claim o emergency authority. On appeal to the SupremeCourt, the Nazi saboteurs, as they came to be known, claimed that they should betried in civilian court because they were not wearing their uniorms when arrested. The

government argued that they were enemy aliens who entered the country as belliger-ents. The Court noted that neither the Congress nor the president possessed powers notderived rom the Constitution, but also that the Constitution was clear about its purpose,stated in the preamble, to provide or the common deense. Suspects who associatethemselves with the military arm o an enemy government are considered enemy com-batants and are not then entitled to use civilian courts. Since 2001, this has become atricky question because our War on Terror is against paramilitary terrorist groups whoarent tied to a state.

Recall that the Patriot Act allowed the executive to round up those suspected o terroristactivities in the United States and detain them without access to attorneys. In the 2004case oHamdi v. Rumsfeld, the Court addressed whether such detention was legal. The

case was brought by the ather o Yaser Esam Hamdi, who wanted to know what chargeshis son aced. Since Hamdi was being held in a military acility, the case was in eect arequest that Secretary o Deense Donald Rumseld produce the accused and announcethe charges. In this case, the Supreme Court was not ready to give the presidency the sameauthority it had in World War II. On one level, the case was dierent rom the Germansaboteurs because the saboteurs werent U.S. citizens. But on another level, there was asimilarity: i those suspected could be labeled enemycombatants, they could be viewedno dierently rom the saboteurs. The problem here was that suspicion alone was enoughto deny one his/her constitutional rights.

The Court held that a citizen-detainee seeking to challenge his classiication as an enemycombatant must receive notice o the actual basis or his classiication and a air opportu-nity to rebut the governments claims. The Court held that circumstances might also dic-tate that enemy proceedingsmay be tailored to alleviatetheir uncommon potential toburden the executive at a timeo ongoing military conlict.The Court concluded withthe observation that Thereremains the possibility that thestandards we have articulatedcould be met by an appropri-

ately authorized and properlyconstituted military tribunal.A president in a time o war,then, has the authority to usemilitary tribunals as an emer-gency measure. The problemremains, however, that sincethis is a war on terror, it has thepotential to go on indeinitely.

InHamdi v. Rumsfeld,the Supreme Court ruled that the

president, in time o war, has the authority to use military

tribunals as an emergency measure.


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CHAPTER 5Section 5.8 Controlling Presidential Power

5.8ControllingPresidentialPower

As our preceding discussions o both presidential prerogative and wartime presidentsshow, a president can assume a great deal o authority and become quite powerul unlessthe other branches o government impose restraints. Historically, the balance o power

between the president and Congress has swung back and orth. Oten, ater periods ostrong presidential authority or perceptions that a president has exceeded the bounds oprerogative, Congress responds with attempts to control his power. Occasionally Con-gress has passed what has been reerred to as presidency curbing legislation. The twomost notable examples were the 1973 War Powers Act and the 1974 Budget Reorm andImpoundment Act.

War Powers Act

The War Powers Act was intended to make the president more accountable to Congresswhen it comes to waging war. American presidents have always assumed that it was theirright, i not their duty, to respond to an attack with orce, and that this was essential totheir obligations to preserve and protect the Constitution o the United States. It is alsoworth noting that when Congress initially passed this law, President Nixon vetoed it,claiming that it was unconstitutional. Congress overrode his veto. By responding to irewith ire, the president is, in eect, making war.

Presidents, however, have not always sought a ormal war declaration. In some cases,such as the wars in Korea and Vietnam, presidents have circumvented the need or a or-mal declaration by labeling the conlicts police actions. In Vietnam, President Johnsondid seek and received a congressional resolution to respond to an attack on Americanships in the Gul o Tonkin in 1968. Still, the war, which ended up being deeply unpopular,

was considered to be undeclared, and the situation was only exacerbated with PresidentNixons secret bombings in Cambodia and elsewhere in subsequent years. The War Pow-ers Act requires that any time the president sends troops, aircrat, ships, or any othermilitary units anywhere in the world, he must notiy Congress within orty-eight hourso doing so. Congress, then, can decide whether to approve the action or order the orceshome, in which case the president must recall them within sixty days. I the president goesback to Congress and says that is not enough time, he is entitled to an automatic thirty-day extension. As in the case in the vignette at the beginning o the chapter, Congress canail to pass authorization, thereby suggesting that the president does not have its support.However, in the case o Libya, Congress also voted down a bill to stop unding, perhapsrecognizing that pulling the plug would have disastrous implications or Americas imageabroad.

Presidents have uniormly called the War Powers Act unconstitutional because it inringeson their commander in chie unction. But all the act really does is require the president tonotiy Congress and be accountable. It also, in eect, allows a president to ight a ninety-day undeclared war. The pitall is that in ninety days, American orces could become soentrenched that they would ind it very diicult to withdraw, orcing Congress to or-mally declare war. The act is considered to be a control on the imperial presidency becausea president can no longer act unilaterally. Rather, he must act within the bounds o hisauthority as provided by law.


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CHAPTER 5Section 5.8 Controlling Presidential Power

The Budget Reform and Impoundment Act

The Budget Reorm and Impoundment Act was Congresss response to Richard Nixonspractice o not spending money or programs that he did not want or thought alreadyhad too much money. Nixon, who opposed the social spending programs o the 1960s,

would ask or less money or them and Congress would respond by appropriating more.Nixon responded by impounding the dierence. The eect o this practice was to useimpoundment as a orm o line-item veto. Historically, it was actually considered a soundiscal practice because it enabled a president to move unds rom over-unded programsto under-unded ones, or to reduce spending so that the government would not run adeicit.

Like the War Powers Act, the Budget Reorm and Impoundment Act is about presiden-tial accountability to Congress. Title X o the act expressly orbids the president romimpounding unds, though he can deer spending unds or orty-ive days. Congress,however, has the right to veto that deerment, which means that the unds would haveto be spent as appropriated. I Congress ails to act within orty-ive days, the deerment

continues indeinitely, which in eect means that the unds have been impounded. Thepresident can pursue another course by requesting that Congress rescind the amount omoney appropriated or a program over what was initially requested. I Congress passesa rescission bill within orty-ive days, the unds are also eectively impounded. But iCongress ails to act, the money must be spent as appropriated. This measure also createda Congressional Budget Oice (CBO) to oer independent analyses o budgets proposedby the president. The CBO was designed to be a counterweight to the Oice o Manage-ment and Budget (OMB) in the White House.

Impeaching a President

As discussed in the previous chapter, the impeachment process is the ormal mechanismby which Congress can remove a president rom oice. A president is not above the lawand can certainly be tried in a regular criminal court or violations o it. However, a pres-ident convicted o a crime could still be president until ormally removed rom oicethrough the impeachment process. The standard o high crimes and misdemeanors isoten understood to mean a constitutional crisis where Congress eels that the presidentis usurping its powers or is reusing to abide by its wishes.

In Federalist Paper No. 65, Alexander Hamilton explains that impeachment deals with mat-ters that have violated the public trust: The subjects of its jurisdiction are those offenses whichproceed from the misconduct of public men, or, in other words, from the abuse or violation of some

public trust. They are of a nature which may with peculiar propriety be dominated POLITICAL, asthey relate chiefly to injuries done immediately to the society itself.

By political standards, Hamilton would appear to be alluding to the separation o pow-ers. When the president usurps the authority o Congress, he has committed the politicalcrime o violating the separation o powers. When Congress investigated the break-in atDemocratic Party headquarters at the Watergate hotel and the possible cover-up by theWhite House, it oten requested inormation rom the president. He typically reused tohand over such inormation, claiming that it was a matter o national security. On a couple


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CHAPTER 5Section 5.9 Presidential Character

o occasions Congress went to court to orce the president to turn over inormation. TheJudiciary Committee o the House o Representatives voted to impeach President Nixon,but ollowing a court order to turn over White House tapes, he inally resigned beore hecould be impeached by the ull House and tried in the Senate.

5.9PresidentialCharacter

As the president is head o state and head o government, as well as a world leader, muchis made about a presidents character and what that character says about his ability to lead.Political scientist James David Barber argues that a presidents character can be dividedinto our distinct personality types: active-positive, active-negative, passive-positive,and passive-negative. I the public can identiy a presidential candidates personalitytype, Barber claims, it can predict his perormance in oice.

Active-Positive

O the our personality types, the active-positive president is said to be the healthiest. Thisis the person who comes to oice with an active policy agenda and sets out to achieve itthrough hard work. This person has a positive outlook on lie and is very energetic.

Examples o the active-positive president include John F. Kennedy and Franklin Roos-evelt. They were optimistic, especially true or Roosevelt during the Great Depression,and they were ready to work with members o Congress to get their agendas passed. Itis not clear, however, that the active-positive president always has to be successul inaccomplishing his agenda to earn the title. Rather, the person has to come with the rightattitude. Kennedy, or instance, was not very successul in getting Congress to pass hislegislative agenda, but ollowing his assassination his agenda ormed the basis o theWar on Poverty and Great Society programs o the 1960s. It took the skill and experienceo his successor, ormer Senate majority leader Lyndon Johnson, to get much o Ken-nedys agenda passed.

Active-Negative

The active-negative president is oten seen to be the least healthy o the personality types.The active-negative person also comes to oice with good ideas, energy, and a desire toaccomplish great things, but something in his personality brings him down and results in

his ailure. Barber considered Woodrow Wilson, Lyndon Johnson, and Richard Nixon tobe examples o active-negative presidents.

Wilson, who was president rom 19131921, came to oice with an active domestic policyagenda and was at the oreront o transorming the American presidency rom a passiveinstitution into an active one. But he could also be uncompromising, a trait that showed itselover the battle to join the League o Nations. His reusal to compromise with Republican


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members o the Senate resulted in their ailure toratiy the Versailles Peace Treaty ollowing WorldWar I. Following this battle, Wilson suered astroke and his wie eectively served as presidentuntil he let oice. In the end, he died a broken

man. Despite his domestic policy achievements,history has not viewed him as a great success.

Similarly, Lyndon Johnson was energetic in hisdomestic policy achievements, including the his-toric Voting Rights Act o 1965. But his determina-tion to prosecute the war in Vietnam amidst mas-sive public protest brought down his presidency.Facing strong challenges in the 1968 primaries orthe Democratic Party nomination, Johnson with-drew rom the race. Nixon, who came to oicewith intelligence and energy, was widely seen as

paranoid. He oten viewed his political opposi-tion as his personal enemies. Mired in the Water-gate cover-up, he resigned in disgrace in the aceo impeachment proceedings.

Passive-Positive

The passive-positive president is oten viewed asa caretaker who does not come to oice with anygreat enthusiasm, but might rise to the occasion

during a time o crisis. As Barber explains, they are responders; not initiators or pushers.They like to accentuate the positive and be cheerleaders: In the Presidency they are, in manyways, nice guys who finished first, only to discover that not everyone is a nice guy.

Passive-positive presidents oten seek the oice because electoral victory represents per-sonal airmation and boosts their sel-esteem. They are oten said to seek the love o theircountrymen, and the act that they are elected demonstrates that love. Barber oers theexample o Warren G. Harding as a passive-positive president. Harding spent little time onPresidential homework. He played gol and poker a couple o nights per week. He alwaysmaintained that he wasnt prepared or the job, which Barber suggests was an appeal orreassurance. He appeared to have had little interest in exercising power, and even disliked it.

Recent students o the presidency oten suggest that Bill Clinton was passive-positivebecause he always craved the love and adulation o the public. Clinton was also active-positive in many respects, because he came to oice with a strong agenda and workedhard to achieve much o it. Arguably, there may have been traits o the active-negativein Clinton. He allowed himsel to get embroiled in an extramarital relationship that ulti-mately led to his impeachment. By Barbers thesis, had we known or understood thisabout his character, we might have opted not to elect him.

President Woodrow Wilson, who led

the United States rom 1913 to 1921,

was considered an active-negative

president. He came to ofce with an

active domestic policy agenda, but his

reusal to compromise with Republican

members o the Senate led to the ailed

ratifcation o the Treaty o Versailles.


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Passive-Negative

The passive-negative type o president is a relic o the past. He does not really want to bepresident but will serve out o a sense o duty i called upon by his countrymen. Exampleso this type include the nations Founding Fathers like Washington and Jeerson. Wash-

ington would have preerred to stay home in Mount Vernon, Virginia, but it was a ore-gone conclusion that he would be the nations irst president because the public expectedit o him. Jeerson, too, is said to have preerred to stay home in Monticello, Virginia, andindeed he did spend much o his presidency there, but he also served because he thoughtit was expected o him.

Given the amount o time and money that it takes to run or oice today, it is hard toimagine anybody would seek the oice who does not really want it. The only modern-daypresident who might have come close was George H. W. Bush, who was elected in 1988.He did not enter oice with an active policy agenda. Rather, he came rom a patricianamily tradition where members o the upper crust o societythe wealthy eliteservebecause they see it as their duty. He oten gave the appearance that he wanted to be presi-

dent because it was his turn. He is not a perect it, however, because there is no evidencethat the public overwhelmingly sought him out.

Does Character Matter?

Presidential character is important, but it is not always clear that we can know a candi-dates character prior to his taking oice. At times, circumstances arise that could not havebeen oreseen. We could not have known when Wilson was elected in 1912 that World WarI would erupt in 1914, the United States would get involved in 1917, and he would in theend be uncompromising over the terms o a peace treaty. At the same time, there wereindications that he was a person o principle who was not always willing to compromise.Biographers point to his inability to please all the relevant actions when he was presi-dent o Princeton University earlier in his career. He was, however, a successul governoro New Jersey. There is really no way or the public to psychologically test a presidentbecause there is no way o knowing what circumstances will arise.

But or some voters there is the question o moral character. Stories o Bill Clintonsinidelity were widely known beore he ran or president. He escaped conviction in hisimpeachment hearing largely because the public did not believe his private lie was rel-evant to his perormance in oice. O course, others disagreed. Issues o idelity are abouttrustworthiness, and i a president is not trustworthy it may be extremely diicult orhim to orm working relationships with members o Congress and the end result may be

inability to lead.

Ultimately, the issue o character speaks to whether the person is really it to be president.Other than a minimum age and that one be a natural-born citizen, there are no ormalconstitutional requirements or oice. In many cases, voters vote based on a perception owhether this person comes across as presidential. Being president, in the minds o most,may mean acting appropriately, having good character, being digniied and trustworthy,and to some extent appearing to be above the political ray.


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CHAPTER 5Summary and Application

SummaryandApplication

The Constitution o the United States grants the president the ormal authority to be com-mander in chie o the armed orces, to make appointments subject to the consent o theSenate, to negotiate treaties also subject to the consent o the Senate, to issue pardons, and

to veto legislation. Beyond that, it has been up to presidents to carve out their own roles inAmerican history and deine or themselves the scope o their power.

Because the Constitution speciically requires the president to preserve and protect theConstitution, but is silent about what that means, presidents have inerred authority onthe basis o prerogative. This has meant dierent things to dierent people, but histori-cally presidents have used it to expand their powers, and in some cases to become impe-rial presidents. A presidents power is limited by the necessity or him to persuade others.During times o crisis and in the realm o oreign aairs, presidents tend to enjoy greaterauthority and power. At the same time, there are mechanisms by which Congress can con-trol presidents and curb their power. Presidential power has at times been curbed through

legislation and at other times by a large loss o seats o the presidents party in Congress.

Key Ideas to Remember

ArticleIIestablishesformalpresidentialpowerssuchascommanderinchief,par-

doning,treatymaking,andexecutingthelawsoftheland,butitalsoleavesmuch

ofhispowerundefined.

PresidentsenjoyagreatdealofprerogativebecauseofthesilenceoftheConstitu-

tiononanynumberofissues.IftheConstitutiondoesnotsaythatthepresident

cannotdosomething,buthefeelssomethingneedstobedone,heoftenexerciseshisprerogative.

Ultimatelythebasisofpresidentialpowerispolitical.Itisthepresidentsabilityto

persuadeotherstodowhathewantsorthinkheisright.Presidentsareoftensaid

tolackpowerwhentheyareunabletopersuade.

Presidentsareoftensaidtohavemorepowerinforeignpolicythanindomestic

policy.Inforeignpolicythereisagreatertendencytodefertothepresidentandin

domesticpolicyagreatertendencyforCongresstocheckwhatthepresidentdoes.

TheAmericanpresidencyislargerthanthepresidenthimself;it includeshim,the

ExecutiveOfficeofthePresident,theWhiteHousestaff,andthecabinet.

Duringtimesofemergency,presidentshavetendedtoexercisetheirprerogativeto

thepointofbecomingimperial,and,duringtimesofwar,evendictatorial.

Congresscan controlthepowerofpresidents throughhearings,legislation,andimpeachment.

PresidentialelectionsintheUnitedStatesareuniqueinthattheyarelong,drawn-

outprocessesandtakeplaceonastate-by-statebasis.

Inselectingapresident,votersoftenconsiderhischaracter,whichmightsaysome-

thingabouthowhecanbeexpectedtoperforminofficeifelected.


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Concept Check

1) Presidential prerogative allows the president to

a) Do whatever he pleases

b) Do what he thinks is necessary in the absence o a Congressional mandate notto do itc) Be a wartime dictatord) Dey the will o Congress

2) An unoicial presidential power is

a) The power to persuadeb) The role o commander in chiec) The power to make appointmentsd) The power to grant pardons

3) A domestic president is said to be weaker than a oreign policy president because

a) Presidents dont like domestic policyb) Presidents cannot command Congressc) Congress wants a greater say in those matters that aect their constituentsd) All o the above

4) Courts have tended to deer to presidents during times o emergency, such aswars because

a) They trust their judgmentb) They dont believe that presidents will listen to themc) Presidents can ire judgesd) There can only be one commander in chie

5) To win a presidential election, the candidate must get

a) A majority o the popular voteb) 270 electoral votesc) All electoral votesd) None o the above

6) An active-positive president

a) Is lazyb) Dislikes being presidentc) Craves the aection o his countrymen

d) Comes to oice with energy, enthusiasm, and an ambitious political agenda

Answers: 1b; 2a; 3c; 4b; 5b; 6d


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Questions to Consider

Whatdoesitmeanforthepresidenttobecommanderinchief? Whatisthemeaningofpresidentialprerogativeandhowhasitevolved? Bysomeaccounts,thepresidentoftheUnitedStatesmightbethemostpowerful

person in the world, and by others he or she may be the weakest. Which do youthink is the stronger argument and why?

BywhatmechanismscanCongresslimitpresidentialpower? Hadweunderstoodpresidentspersonalitytypespriortotheelection,wouldwe

have been able to predict how they would behave in oice? Why or why not?

Key Terms

active-negative The type o presidentwho comes to ofce with good ideas and

energy, but is ultimately prone to ailuredue to personality traits.

active-positive The type o president whocomes to ofce with optimism, energy,an active policy agenda, and a positiveoutlook.

Budget Reorm and ImpoundmentAct Statute that makes it more difcult orthe president to impound unds.

cabinet Collection o executive branchdepartment heads who may advise thepresident when asked.

constitutional crisis When Congressbelieves that the president has abused hispower and authority by deying the will oCongress.

domestic policy president A presidentwho is generally weaker in domesticpolicy relative to Congress.

Emancipation Proclamation The procla-mation, issued by President Lincoln dur-ing the Civil War, that reed the slaves.

Executive Ofce o the President(EOP) Created in 1939, a division thatconsists o White House sta and otheradvisers who help the president direct theactivities o the executive branch.

oreign policy president A president whois generally stronger in oreign policy rela-

tive to Congress.

Geneva Convention An internationalunderstanding about the rules o warbetween nation states.

Habeas Corpus A demand by a courtto a jailer to produce the prisoner andannounce the charges.

imperial presidency that o a presidentwho assumes that he is above the law and

can do as he pleases.

line-item veto When a chie executive canreject portions o a bill rather than havingto veto the entire bill.

mandate When a president believes heenjoys broad popular support because othe size o his electoral victory, and thissupport allows him to do what he thinksthe people want.

National Deense Act The law that cre-ated a unifed Deense Department.

participatory caucus A gathering tochoose delegates during the primary phaseo a presidential election.

passive-negative The type o presidentwho doesnt want to be president butserves out o a sense o duty.


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passive-positive The type o presidentwho seeks ofce because he wants theadoration o the public.

plebiscitory presidency When victory at

the polls allows the president to do as hepleases.

presidency curbing legislation Legisla-tion passed by Congress in an attempt tocontrol presidential power and reassertchecks and balances.

War Powers Act The requirement that thepresident notiy Congress o the use o orce.

Web Links

The White House: http://www.whitehouse.gov/

The International Public Library/Drexel University College o Inormation Science andTechnology: http://www.ipl.org/div/potus/

Center or the Study o the Presidency and Congress: http://www.thepresidency.org/

The American Presidency Project: http://www.presidency.ucsb.edu/

American Presidents Lie Portraits/C-SPAN: http://www.americanpresidents.org/

The Miller Center at the University o Virginia: http://millercenter.org/president

Further Reading

Barber, J. D. (2008). The presidential character: Predicting performance in the White House. (4th

ed., Rev. ed.). Englewood Clis, NJ: Prentice Hall.

DiClerico, R. E. (1999). The American president. (5th ed.). Englewood Clis, NJ: Prentice Hall.

Fisher, L. (2005). American constitutional law: Volume 1 constitutional structures, separatedpowers and federalism. (6th ed.). Durham, NC: Carolina Academic Press.

Fisher, L. (2007). Constitutional conflicts between congress and the president. (5th ed.). Law-rence, KS: University Press o Kansas.

Mansield, H. C. (1989). Taming the prince: The ambivalence of modern executive power. NewYork: The Free Press.

Nelson, M. (2009). The presidency and the political system. (9th ed.). Washington, DC: CQ Press.

Neustadt, R. E. (1960). Presidential power. New York: Signet Books.

Pious, R. M. (1979). The American presidency. New York: Basic Books.

Pyle, C. H., and Pious, R. M. (1984). The president, congress, and the constitution: Power andlegitimacy in American politics. New York and London: The Free Press.
http://www.whitehouse.gov/http://www.ipl.org/div/potus/http://www.thepresidency.org/http://www.presidency.ucsb.edu/http://www.americanpresidents.org/http://millercenter.org/presidenthttp://millercenter.org/presidenthttp://www.americanpresidents.org/http://www.presidency.ucsb.edu/http://www.thepresidency.org/http://www.ipl.org/div/potus/http://www.whitehouse.gov/


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Schlesinger, A. M. Jr. (1973). The imperial presidency. New York: Popular Library.

Skowronek, S. (1997). The politics presidents make: Leadership from John Adams to Bill Clinton.Cambridge, MA and London: Belknap Press.

Wildavsky, A. (1969). The two presidencies. In A. Wildavsky (Ed.). The presidency. Boston:Little, Brown.


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government ch 5

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