An Imperial Presidency?An Imperial Presidency?

The Executive vs. Congress The Executive vs. Congress and the Courtsand the Courts

I. Can Congress Check the I. Can Congress Check the President?President?

A.A. What predicts Presidential success in What predicts Presidential success in Congress?Congress?

1.1. Presidential popularity has little effect – Only a slight Presidential popularity has little effect – Only a slight effect in the Senate, none in the Houseeffect in the Senate, none in the House

2.2. Partisanship: Same-party members more supportivePartisanship: Same-party members more supportivea.a. Effect is largest for first-term CongresspeopleEffect is largest for first-term Congresspeopleb.b. Effect is largest during non-election yearsEffect is largest during non-election years

3.3. Issue Type: Foreign policy success more likely than Issue Type: Foreign policy success more likely than domestic policy successdomestic policy success

4.4. Proaction vs. Status Quo – President is more Proaction vs. Status Quo – President is more successful at stopping unfriendly bills than passing successful at stopping unfriendly bills than passing friendly onesfriendly ones

B. What predicts executive success B. What predicts executive success in the bureaucracy?in the bureaucracy?

1.1. Legislative Vetoes: Congress attaches Legislative Vetoes: Congress attaches strings to delegation of powerstrings to delegation of power

a.a. Declared unconstitutional – Declared unconstitutional – INS vs. ChadhaINS vs. Chadha

b.b. Hundreds of new legislative vetoes passed Hundreds of new legislative vetoes passed since since INS vs. ChadhaINS vs. Chadha! – Effective because ! – Effective because Congress refuses to delegate authority Congress refuses to delegate authority when Presidents ignore legislative vetoeswhen Presidents ignore legislative vetoes

2. Executive Orders2. Executive Orders

a.a. Presidents issue Presidents issue moremore executive orders executive orders under united government!under united government!

b.b. Orders rarely overturned – because Orders rarely overturned – because Presidents don’t issue them if they Presidents don’t issue them if they anticipate a veto-proof majority against anticipate a veto-proof majority against themthem

C. War Powers: Does Congress Have a C. War Powers: Does Congress Have a Role?Role?

1.1. Declaration of War vs. Commander-in-Chief: Which Declaration of War vs. Commander-in-Chief: Which clause governs initiation of combat?clause governs initiation of combat?

a.a. Early 19Early 19thth Century: Congress authorizes military action Century: Congress authorizes military action short of war against France, Barbary Pirates, American short of war against France, Barbary Pirates, American Indians, etc.Indians, etc.

b.b. Late 19Late 19thth Century – Early 20 Century – Early 20thth Century: Presidents begin Century: Presidents begin deploying small detachments of Marines without advance deploying small detachments of Marines without advance approval from Congressapproval from Congress

c.c. 1950: Truman calls the Korean War a “police action” and 1950: Truman calls the Korean War a “police action” and says no declaration of war is neededsays no declaration of war is needed

d.d. 1989: Bush invades Panama without asking Congress for 1989: Bush invades Panama without asking Congress for authorityauthority

e.e. 1991: Bush argues that UN Security Council approval 1991: Bush argues that UN Security Council approval eliminates need for Congressional approval (then asks for eliminates need for Congressional approval (then asks for it anyway). Clinton repeats the argument for UN/NATO it anyway). Clinton repeats the argument for UN/NATO approval in 1994 (Haiti and Bosnia) and 1999 (Kosovo)approval in 1994 (Haiti and Bosnia) and 1999 (Kosovo)

2. War Powers Act2. War Powers Act

a.a. Enacted in 1973Enacted in 1973

b.b. Requires President to notify Congress Requires President to notify Congress and get permission to continue hostilities and get permission to continue hostilities beyond 60 daysbeyond 60 days

c.c. Repudiated as unconstitutional by all Repudiated as unconstitutional by all Presidents sincePresidents since

d.d. No military action has ever been No military action has ever been curtailed by the War Powers Actcurtailed by the War Powers Act

3. The “Power of the Purse”3. The “Power of the Purse”

a.a. Congress must approve all expendituresCongress must approve all expenditures

b.b. Congress can stop wars by cutting off fundsCongress can stop wars by cutting off funds

c.c. Process is rarely usedProcess is rarely usedi.i. Never used during war – No one will vote to leave US Never used during war – No one will vote to leave US

troops stranded, and Presidents threaten not withdraw troops stranded, and Presidents threaten not withdraw them before money runs outthem before money runs out

ii.ii. Used to prevent escalation: Southeast Asia (1973), Used to prevent escalation: Southeast Asia (1973), Central America (1980s – circumvented)Central America (1980s – circumvented)

d.d. Some argue process is unconstitutional: Reagan Some argue process is unconstitutional: Reagan rejected constitutionality of Boland Amendmentrejected constitutionality of Boland Amendment

II. Can Courts Check the II. Can Courts Check the President?President?

A.A. The power of judicial review: limited by The power of judicial review: limited by Court’s inability to enforce decisionsCourt’s inability to enforce decisions

1.1. Jefferson threatens to ignore the Court – Jefferson threatens to ignore the Court – Marbury vs. MadisonMarbury vs. Madison as a strategic decision as a strategic decision

2.2. Jackson ignores the Court – Jackson ignores the Court – Worcester vs. Worcester vs. GeorgiaGeorgia

3.3. Lincoln ignores the court repeatedly – Lincoln ignores the court repeatedly – Dred Dred Scott, Ex parte MerrymanScott, Ex parte Merryman

4.4. Nonenforcement is extremely rare: requires Nonenforcement is extremely rare: requires public opposition to Court legitimacypublic opposition to Court legitimacy

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B. Limits on the Court’s PowerB. Limits on the Court’s Power

1.1. Case or Controversy – Real dispute must Case or Controversy – Real dispute must exist; no advisory opinionsexist; no advisory opinions

2.2. Stare DecisisStare Decisis – Respect precedent – Respect precedent3.3. Political Question Doctrine – Avoid questions Political Question Doctrine – Avoid questions

best decided through political process or by best decided through political process or by another branchanother branch

4.4. Comity – Treat other branches as equals Comity – Treat other branches as equals (avoid interfering in internal processes)(avoid interfering in internal processes)

5.5. Jurisdiction – Congress can strip Court of Jurisdiction – Congress can strip Court of jurisdiction over some casesjurisdiction over some cases

6.6. Standing – Parties must have specific personal Standing – Parties must have specific personal stake in outcomestake in outcome

C. Courts as a Check on the C. Courts as a Check on the Executive BureaucracyExecutive Bureaucracy

1.1. Courts now follow doctrine of deference Courts now follow doctrine of deference on regulatory decisionson regulatory decisions

2.2. Actual amount of deference seems to Actual amount of deference seems to depend on Presidential popularitydepend on Presidential popularity

D. Effectiveness of the Court vs. D. Effectiveness of the Court vs. Presidential PowerPresidential Power

1.1. Domestic policy – Effective: Truman’s Domestic policy – Effective: Truman’s Seizure of Steel Mills, Nixon’s Tapes, etc.Seizure of Steel Mills, Nixon’s Tapes, etc.

2.2. Foreign Policy – IneffectiveForeign Policy – Ineffectivea.a. Treaties must be Constitutional – But not Treaties must be Constitutional – But not

one has ever been struck downone has ever been struck downb.b. War powers limited – But political question War powers limited – But political question

doctrine normally prevents resolutiondoctrine normally prevents resolutionc.c. Extreme deference on national security – Extreme deference on national security –

willingness to base decisions on unknown willingness to base decisions on unknown secret informationsecret information

III. ConclusionsIII. Conclusions

A.A. Domestic policy – Presidential power Domestic policy – Presidential power highly limitedhighly limited

1.1. Presidential programs easily blocked by Presidential programs easily blocked by Congress, also subject to Court reviewCongress, also subject to Court review

2.2. President does have some ability to prevent President does have some ability to prevent disliked domestic policy through disliked domestic policy through nonenforcement or veto powernonenforcement or veto power

B.B. Foreign policy – President is virtually Foreign policy – President is virtually unconstrainedunconstrained