Part 2

Congress and The Executive “Power V. Power”

X. Original Intent

A. Framers’ saw a state of friction between the two branches because each had powers that would bring them into potential disagreement with each other.

B. Separation of powers and checks on those powers were instituted to allow independent operations in their delegated areas and cooperation in others they shared.

C. Congressional Controls on the Executive

Most Executive branch powers or duties are subject to Congress’ approval or oversight such as: - The budget process - Government operations - Law-making - Treaty ratification - War-making - Appointment confirmation - Veto override

XI. PRESIDENTIAL TECHNIQUES TO ACHIEVE HIS AGENDA

• Build coalitions: - Seek bipartisan solutions - Convert opponents to your side or

defeat those who continue to oppose your policies.

• Use the “bully pulpit”, or special interests, and the media to mold public opinion against Congress via:

- Press conferences; targeted issue speeches

- State of the Union Address - Saturday radio addresses and

YouTube messages - Meet the people events• Executive orders: Do it his way

XII. THE IMPERIAL PRESIDENCY

A. May occur as a result of powers inherent in the roles of Chief Executive, Commander-in-Chief, and foreign policy,

whereby the President may decide to act unilaterally by using his constitutional powers for political reasons.

Executive order: - A rule issued by the President

only to Executive branch organizations ordering a policy or action to be followed or ended on his authority. These orders have the force of law, but are not binding on any future presidents.

Executive Order Examples- Emancipation Proclamation

(1863) Lincoln ordered slaves freed in areas of rebellion

- E.O. 9066 (1942) Roosevelt ordered the internment of Japanese-Americans during WW2

- E.O. 12033 (1979) Carter banned all U.S. intelligence agencies from conducting assassinations

- E.O. 13543 (2010) Obama placed a moratorium on new offshore oil drilling after the 2010 BP oil rig blowout

Imperial Presidency (cont’d)

Executive privilegeExecutive privilege• The right of the president to keep

essential communications between him, his advisors and staff private. Some presidents have interpreted this as just about all communications.

• In U.S. v. Nixon (1973)U.S. v. Nixon (1973) the Court ruled that there is no presidential right to “absolute, unqualified immunity” in his communications that may be questionable as to subject, or which may serve as evidence of criminality.

IMPERIAL PRESIDENCY (CONT)IMPERIAL PRESIDENCY (CONT)

Presidential findingPresidential finding In extraordinary situations, In extraordinary situations,

presidents may come to a presidents may come to a conclusion that they should conclusion that they should sign an authorization to sign an authorization to violate a law so that a violate a law so that a greater good may be greater good may be attained outside that law. attained outside that law.

- These “findings” may not - These “findings” may not legally hold up in the end.legally hold up in the end.

Example:Example: Iran-Iran-Contra Controversy Contra Controversy (1986)(1986)

Imperial Presidency (cont’d)Imperial Presidency (cont’d)

Signing statements Signing statements

The President signs a bill The President signs a bill into law, but states in into law, but states in writing that he believes writing that he believes part of the law to be part of the law to be unconstitutional and he unconstitutional and he intends to ignore it, intends to ignore it, implement it differently, or implement it differently, or interpret it in ways he interpret it in ways he thinks are constitutional. thinks are constitutional.

XIII. Budgetary Imperialism

A. Impoundment

- President refuses to spend money (for any reason) that was legally appropriated by Congress for things in the budget.

Reform and Impoundment Budget Act (1974)

– Required president to spend funds unless Congress approved impoundment.

– Created standing Budget Committees in both houses and the independent Congressional Budget Office (CBO) to counter the president’s OMB.

Budget FightsBudget Fights• The The President’s budget is a President’s budget is a major source of political major source of political contention. It is reflective of contention. It is reflective of each branch’s agenda to cut, each branch’s agenda to cut, tax, or spend. Unified gov’t tax, or spend. Unified gov’t is no guarantee of a smooth is no guarantee of a smooth budget process. budget process.

• SequestrationSequestration: : President President cuts money from the budget cuts money from the budget that was already that was already appropriated by Congress appropriated by Congress without its approval in order without its approval in order to cut spending, or use the to cut spending, or use the money to fund other money to fund other programs not approved by programs not approved by Congress. Congress.

Failure to pass an Failure to pass an annual budget may annual budget may require passage of require passage of legislation to keep legislation to keep government funded at government funded at levels for the last levels for the last budget cycle. This is budget cycle. This is called a called a continuing continuing resolutionresolution..

If one is not passed, theIf one is not passed, the president may order a president may order a government shutdown government shutdown and force a budget and force a budget battle with Congress.battle with Congress.

B. Federal Spending Mandatory spending Expenses required by law. In 2013 mandatory spending represents over 60% of the annual budget. Both branches vow to protect certain expenditures (“sacred cows”) or cut them as “pork” thus creating budget impasses. Examples:- Entitlements (e.g. Social Security, Medicare, veterans pensions) - Interest on national debt- Welfare programs (e.g. food stamps, unemployment insurance)- Student Loans

Spending Types (cont’d)Discretionary spending- What is left over for all other gov’t needs and is the focus of Executive v. Legislative branch budget decisions and compromise. Examples: -- Defense -- Education -- National parks -- Transportation infrastructure -- Foreign aid - Disaster relief - Routine gov’t operations

XIV. WAR POWERS

A. Only the President is the Commander-in-Chief and foreign policy initiator, NOT Congress. However, only Congress can declare war and only when requested by the president.

B. Constitution subordinates the military to the decisions of civilian leaders.– The military implements what the President and his security advisors decide is in the nation’s strategic interest.

C. Imperial Commander-in-Chief Role of C-in-C has seen expansion of presidential war-making power outside of legislative checks by: - Designing defense strategy without input from Congress (Example: Pres. Obama’s 2012 declaration to reduce U.S. nuclear weapon inventory by 80%) - Using military force without Congressional declaration of war, or not consulting first with them. (Example: 2011 US intervention in Libyan civil war) - Demanding legislation to expand emergency powers to protect nation at the expense of personal rights. (Example: Bush Jr’s 2002 Patriot Act)

D. Using Military Force1. Last declared war was WW2.1. Last declared war was WW2. Since then, presidents have used the military about 250 times to effect their foreign policy agenda without Congressional knowledge or a declaration of war.

- Iranian hostage rescue (Carter) - Grenada invasion (Reagan) - Persian Gulf War (Bush Sr.) - Somalia intervention (Clinton) - Invasion of Iraq (Bush Jr.) - Attack on Libya (Obama)

E. WAR POWERS ACT • Enacted as a Congressional reaction to Richard Nixon’s expansion of the Vietnam War into Cambodia in 1971 without Congress’ consent or knowledge.

• W.P.A. provisions: Presidents can send up to 10,000 troops into a hostile situation for a period of 60 days and have another 30 days to return them (90 day total) without notifying Congress or getting their approval.

War Powers Act

• To date, no president of either party has acknowledged the law’s constitutionality.

- None want to be constrained by it. - None has challenged it in court.

• Congress has never enforced it, although it has often threatened to.

• Confiscate private property

• Set wage & price controls

• Ration strategic materials

• Control transportation & communications

• Mediate with labor

• Declare martial law & suspend habeas corpus

XVI. Presidential Emergency Powers

WHAT PRESIDENTIAL CRITTERS AWAIT US IN THE 2016 ELECTION?

END OF UNIT 9 (Part 2)

THE PRESIDENCY