Presidential Power andLimitations

EPISD U.S. Government Team -John M. Seymour

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AUTHOREPISD U.S. Government Team -John M. Seymour

www.ck12.org Chapter 1. Presidential Power and Limitations

CHAPTER 1 Presidential Power andLimitations

The Presidency – Power and Limitations

FIGURE 1.1The Seal of the United States President is a visual symbol of the powerand influence this office has over the operation of the United StatesGovernment.

UNLOCKING THE TRUTH

Describe the powers and limitations of the United States Presidency.

Presidential Power

One of the main questions debated during the constitutional convention of 1787 was whether the new governmentshould have a single executive official. The recent memory of the Revolutionary War fought against monarchy madedelegates to the constitutional convention wary of executive power. But the constitutional convention was called toremedy defect in the Article of Confederation, one of which was the lack of an executive figure. The extended debateover executive power concluded with the creation of an executive office with considerable power and considerablechecks and balances.

The president has both legal (or formal) powers and political (or informal powers) The legal powers are provided inthe Constitution, statutes, and case law. The president’s constitutional powers are set forth in Article II. Comparedto Article I, which sets forth congress’ powers, Article II is a short and general article. The statement that “theexecutive Power shall be vested in a President” is followed by brief descriptions of how the president is selected,who is eligibility to serve as president, a statement that the president is commander-in-chief, and a description ofthe president’s appointment and treaty making powers. The president’s statutory powers are extensive. As describedbelow, congress has delegated broad powers to the president which greatly supplement the president’s constitutionalpowers. The president’s case law powers are based on court rulings, primarily Supreme Court precedents. Oneof the most intriguing aspects of presidential power is the fact that the president’s formal constitutional powershave changed very little since the founding of the republic but presidential power has changed a great deal. Themajor changes have occurred in the president’s statutory powers, case law powers, and in the political powers.

Video Clip: Crash Course American Government: Express Powers of the President

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MEDIAClick image to the left or use the URL below.URL: http://www.ck12.org/flx/render/embeddedobject/161109

The Legal Sources

In order to understand the presidency, it is very important to recognize the difference between legal and politicalpowers. In fact, the difference is one of the keys to explaining the modern presidency. The President’s constitutionalpowers have remained surprisingly constant (or steady) for more than 200 years. In fact, the major amendment af-fecting presidential power is the 22nd Amendment and it actually reduced presidential power by limiting a presidentto serving two full terms in office—thereby making a President a lame duck as soon as the second term

begins. But presidential power has increased a great deal since the founding of the republic,and presidential powerfluctuates considerably from one president to another. What does the static nature of the president’s constitutionalpowers and the dynamic nature of presidential power say about presidential power? It suggests that the key tounderstanding changes in presidential power are developments in statutory and case law as well as politics.

MEDIAClick image to the left or use the URL below.URL: http://www.ck12.org/flx/render/embeddedobject/161111

The Article II Constitutional Power

Presidents claim three kinds of constitutional powers: enumerated, implied, and inherent powers. The delegatedpowers are the least controversial. Enumerated powers are those that are actually mentioned or enumerated inthe Constitution in Article II. The enumerated powers make the president the chief executive and Commander inChief; give the president power to veto legislation, grant pardons, and make treaties and appoint ambassadors andother government officials including Supreme Court justices; and provide that the president shall from time totime report to Congress on the state of the union as well as to “take Care that the Laws be faithfully executed, andshall commission all the Officers of the United States.”

Some of these enumerated powers are shared with Congress. Treaties must be ratified by the Senate. Supreme Courtappointments (and some other high level executive appoints such as the secretaries of the executive departments)must be confirmed by the Senate. The power of appointment provides a president with an extremely importantrole in the administration of the federal government. The President nominates the heads of the 15 ExecutiveDepartments, federal judges, and other government officials such as the head of the Federal Reserve Board. TheSenate, however, must confirm a nominee in order for the person to be appointed as Secretary of Defense, Secretaryof State, Attorney General, or Supreme Court Justice.

The Presidency in the Constitution

Article II of the Constitution outlines the office of president. Specific powers are few; almost all are exercised inconjunction with other branches of the federal government.

TABLE 1.1: Constitutional Powers of the President

Article I, Section 7, Paragraph 2 VetoPocket veto

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TABLE 1.1: (continued)

Article II, Section 1, Paragraph 1 “The Executive Power shall be vested in a Presi-dent. . . ”

Article II, Section 1, Paragraph 7 Specific presidential oath of office stated explicitly (asis not the case with other offices)

Article II, Section 2, Paragraph 1 Commander in chief of armed forces and state militiasArticle II, Section 2, Paragraph 1 Can require opinions of departmental secretariesArticle II, Section 2, Paragraph 1 Reprieves and pardons for offences against the United

StatesArticle II, Section 2, Paragraph 2 Make treaties

appoint ambassadors, executive officers, judgesArticle II, Section 2, Paragraph 3 Recess appointmentsArticle II, Section 3 State of the Union message and recommendation of

legislative measures to CongressConvene special sessions of CongressReceive ambassadors and other ministers“He shall take Care that the Laws be faithfully exe-cuted”

EXECUTIVE POWERS

The president has the power to manage national affairs and oversee the day-to-day operations of the federalgovernment. In addition, the president has the constitutional power to issue rules, regulations and instructions calledexecutive orders that have binding force of law on federal agencies but do not require approval from Congress. Thepresident also prepares the United States budget and submits it to Congress for approval.

MILITARY POWERS

The president serves as commander in chief of the United States armed forces and can call into service (federalize)National Guard in time of war or national emergency.The president may exercise broad powers to manage national economy and security of the United States (withoversight and approval of Congress).Lastly, the president may send troops to other countries for hostile reasons but must get congressional confirmationwithin 48 hours and seek congressional approval beyond 60 days.

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LEGISLATIVE POWERS

The president has several options when presented a bill from Congress.

• May sign bill into law or allow to become legislation if not signed within ten days of submission• May veto a bill and return to Congress with a “veto message”• May “pocket veto” legislation if Congress adjourns within ten days of sending the bill to the President.• May issue “signing statements” which express his opinion on the constitutionality of a bill’s provisions if he

feels they intrude on his executive power.

As leader of his political party, the President holds a great deal of influence over public opinion and may influencelegislation through public messages and use of the media.

APPOINTMENT POWERS

Before taking office, the president-elect appoints more than 6,000 new federal positions. These include top officialsat U.S. government agencies, White House Staff and members of the U.S. diplomatic corps. Most of theseappointments require confirmation by the Senate.The president nominates federal judges, including members of the United States Courts of Appeals and the U.S.Supreme Court with advice and consent (confirmation) from Congress. This gives the president the power to exertlasting influence on the judiciary through his appointment power because appointments are for life.The president nominates individuals for any vacant position in federal departments or agencies (as listed in the “PlumBook” which contains more than 7,000 governmental positions which must be appointed. In addition, the presidentappoints his staff of aides, advisers, and assistants (which are not subject to Senate confirmation requirements).

EXECUTIVE CLEMENCY

The president has the power to pardon or commutate people convicted of federal crimes except for individuals whohave been impeached and removed from office (must have been impeached by the House and removed followingconviction in Senate).

FOREIGN AFFAIRS

The president conducts and coordinates relations with foreign nations and appoints ambassadors, ministers andconsuls subject to confirmation from the Senate. Additionally, the president has the power to receive and recognizeforeign ambassadors and other public officials. Along with the Secretary of State, the President manages all officialcontacts with foreign governments.Through the Department of State and the Department of Defense, the president is responsible for the protection ofAmericans abroad and of foreign nationals in the United States. The president decides whether to recognize newnations and new governments, and negotiate treaties with other nations, which become binding on the United Stateswhen approved by two-thirds of the Senate. The president may also negotiate "executive agreements" with foreignpowers that are not subject to Senate confirmation.

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EMERGENCY POWERS

The president has implied (but not express) powers in times of national emergency.Some Presidents (Abraham Lincoln and George W. Bush) asserted an implied power to temporarily suspend habeascorpus (the ability to be brought before a judge) in times of national emergency such as the Civil War and theaftermath of the September 11, 2001 attacks.President Franklin Delano Roosevelt similarly invoked emergency powers when he issued an order directing thatall Japanese Americans residing on the West Coast be placed into internment camps during World War II. The U.S.Supreme Court upheld this order in Korematsu v. United States. 323 U.S. 214 (1944).Harry Truman declared the use of emergency powers when he seized private steel mills that failed to produce steelbecause of a labor strike in 1952. With the Korean War ongoing, Truman asserted that he could not wage warsuccessfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped. This action was later overturned by the Supreme Court.

Implied Powers

Implied powers are those that are not actually mentioned in the Constitution, but which are logically related to them.Implied powers are more controversial that enumerated powers because they are not actually mentioned, but merelyimplied. The following are examples of implied powers of the president.

• Firing. If the president has the enumerated power to appoint an official, then it is implied that the president also hasthe power to fire that official. The power to fire is considered a power that is logically related to the chief executiveresponsibility to manage the executive branch.

• Executive Privilege. Executive privilege is a president’s power to refuse to disclose communications with hissubordinates. The Supreme Court has recognized that this power exists in order to ensure that a president receivescandid advice about public policy matters. Executive privilege limits the power of Congress or the courts to compelthe president or his subordinates or advisors to disclose communications.

• Executive Agreements. Executive Agreements are international agreements between the leaders of countries.Executive agreementsf unction like treaties but they do not require senate ratification, therefore the president’ controlover executive agreements is greater

than control over treaties. The Supreme Court has ruled that the president’s constitutional power over foreign affairsimplies the power to enter into executive agreements.

• Executive Orders. An executive order is a presidential directive, usually issued to an executive branch official,which provides specific guidelines on how a policy is to be implemented. Executive orders are a way for thepresident to manage the executive branch. In effect, executive orders are a form of law or policy making by theexecutive branch.

The most controversial kind of presidential power is inherent power. Inherent powers are not actually mentionedin the Constitution or even implied from enumerated powers. Inherent powers are powers that Presidents claim asinherent in the office, powers that the President has simply because the President is the President. Presidents havehistorically claimed that they have the power to do something (e.g., use military force) simply because they arePresident. The argument for inherent powers is that certain powers are inherent in the office and therefore do notrequire any specific legal authorization.4 The inherent powers doctrine is controversial because it is practicallyimpossible to hold Presidents legally accountable if they can claim that their actions do not need legal authorization.

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Executive Privilege

Since the administration of George Washington, presidents have asserted executive privilege which gives thepresident the ability to withhold information from the public, Congress, and the courts in matters of national security.George Washington first claimed privilege when Congress requested to see Chief Justice John Jay’s notes from anunpopular treaty negotiation with Great Britain. This power is NOT included in the Constitution but has beenrecognized since Washington’s tenure in office. Eventually the assertion of executive privilege was limited by thecase of the United States v. Nixon in which Richard Nixon was ordered to hand over tapes recorded in the OvalOffice and eventually resigned rather than have the tapes played in open sessions of Congress. Bill Clinton alsoasserted executive privilege when investigated in the Monica Lewinsky case. The Supreme Court has also stated thatexecutive privilege may not be used to avoid prosecution or some suits in civil court.

Statutory Powers

The president’s powers are not limited to those that can be traced to the Constitution. The president also has statutorypowers. Congress has delegated a broad range of powers to the president to act in domestic policy and foreign andnational security affairs. Congress began delegating policy making powers to the president in the early years ofthe republic. During the 20th Century, Congress delegated so much policy making power to the president thatpolitical scientists refer to the modern president as the “chief legislator” because of the important role the presidentplays in the legislative process. The following list of statutory delegations to the president is merely a short list ofcongressional delegations of power to the president that shows how Congress has delegated to the president broadpolicymaking power in a broad range of areas.

Statutory Delegations

Hostage Act of 1868.This 19th Century Act authorized the president to take “all actions necessary and proper, notamounting to war, to secure the release of hostages.” It provided that the president may act quickly to secure therelease of “any citizen of the United States has been unjustly deprived of his liberty by or under the authority of anyforeign government.” Furthermore, the president has the duty to attempt to secure the release of any hostage andcan “use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuatethe release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by thepresident to Congress.” [ Quoted in Dames Moore v. Regan, 453 U.S. 654 (1981). The Hostage Act was codified at22 U.S.C. Sect. 1732(1976)]

Employment Act of 1946. This Act declared that it was the federal government’s responsibility to manage theeconomy. It also delegated to the president the power “to foster and promote free competitive enterprise, toavoid economic fluctuations or to diminish the effects thereof, and to maintain employment, productivity, andpurchasing power.” The Act was passed because of the significant increase in unemployment in the early 1930sand the perceived “planlessness” of economic policy. [http://research.stlouisfed.org/publications/review/86/11/Employment_Nov1986.pdf ]

Gulf of Tonkin Resolution (1964). This Act authorized the president “to take all necessary measures to repel anyarmed attack against the forces of the United States and to prevent further aggression.” Congress gave the presidenta “blank check” to fight the war in Vietnam. [ http://avalon.law.yale.edu/20th_century/tonkin-g.asp ]

Economic Stabilization Act of 1970. This Act authorized the president “to stabilize prices, rents, wages, and salariesby issuing orders and regulations he deems appropriate.” [ http://www.presidency.ucsb.edu/ws/index.php?pid=3273]

Emergency Economic Stabilization Act of 2008. This Act authorized the president, acting

through the secretary of the treasury, to spend up to $700 billion dollars to “rescue” or “bailout”

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distressed financial institutions. [ http://www.house.gov/apps/list/press/financialsvcs_dem/press092808.shtml ]

Authorizations for the Use of Military Force in Afghanistan and Iraq (2002) In response to the

terrorist attacks on September 11, 2001, Congress authorized the president “to use all means that

he deems appropriate, including the use of military force, in order to enforce the UN resolutions,

defend the national security interests of the United States against the threat posed by Iraq, and

restore international peace and security in the region.” [ http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/content-detail.html ]

The cumulative effect of congressional delegations has been a great increase in the statutory powers of the president.Modern presidents have much more statutory power than early presidents.

Case Law Sources of Presidential Power

A third legal source of presidential power is case law. Court rulings in cases involving presidential power are animportant source of presidential power. The Supreme Court’s rulings in cases involving national security and emer-gency powers are an especially important source of presidential power because the Court has generally supported anexpansive reading of presidential power in these two circumstances. As a result, there is a large body of case lawthat supports presidential power. One of the most important case law precedents is U.S. v. Curtiss-

Wright Export Corporation (1936). The case involved a major U.S. company in the business of selling weapons thatchallenged the President’s power to issue an executive order banning companies from selling arms to two warringSouth American countries. The Court upheld the president’s powers, and used the case to write into constitutionallaw the Sole Organ doctrine. The sole organ doctrine holds that the President is the sole organ of the nation in foreignaffairs. The doctrine originates from a statement that Representative John Marshall made in the House of

Representatives in 1799: “The President is the sole organ of the nation in its external relations, and its sole representa-tive with foreign nations.” [See U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). http://supreme.justia.com/us/299/304/case.html]

Presidents have relied on the Court’s expansive reading of presidential power in national security and foreign affairs.World War II, the Cold War, and the War on Terror provided presidents with many opportunities to use the sole organdoctrine to assert control over foreign affairs—particularly when challenged by Congress. The Court has generallyupheld presidential claims, citing the sole organ doctrine. The enemy combatant cases that the Supreme Court

decided in 2002, 2004, and 2008 were unusual, and controversial, precisely because they placed some limits on thePresident’s power as commander-in-chief to decide how best to wage the war on terror.

Political Sources of Presidential Power

The Party Leader

The emergence of political parties has fundamentally changed politics and government. Political parties changedgovernment by making presidents the de facto political leader of the party to which they belong. The Republicanand Democratic Parties have official leaders, but the President is the most politically visible member of a party andthe party’s highest elected official. Presidents use the political party as an asset to build public support for issues, tobuild political support for administration policies, and to organize support for electoral campaigns.

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In one important respect, party loyalty undermines the Madisonian system of institutional checks and balances.James Madison is the Founder who is most strongly identified with the argument that political power could be heldaccountable by a system of institutional checks and balances. The separation of powers into the legislative, executive,and judicial branches was supposed to make it harder for power to be abused because each branch would jealouslyguard its turf from poaching by another branch. Congress would protect its power from the executive or

judicial branch; the President would protect executive power from encroachment by the congress or the courts; andthe courts would protect their power from Congress or the President. Party loyalty can undermine the system ofinstitutional checks: party loyalty can trump institutional loyalty. Members of Congress may support a president oftheir party more than Congress, and members of the courts might support a President who shares their ideology orpolicy beliefs. For instance, Republican members of Congress supported the expansion of presidential power during

the tenure of Republican President George W. Bush. Diminished institutional loyalty to Congress has enabled theexpansion of presidential power.

Personal Skills

The fact that the Constitution vests the executive power in one person means that a President’s power will depend,to some extent, on his or her personal skills, intelligence, experience, character, leadership, and management styles.The executive branch is a huge institution, and a president cannot assume that everyone will automatically do whathe wants. A president can also be effective getting government officials, and members of Congress, to do what hewants by persuading them, by influencing them. Personal skills vary from one incumbent to another, which is onereason why presidential power fluctuates even though constitutional power remains constant.

Inaugural Addresses and Annual Messages

FIGURE 1.2

There are several formal opportunities for the President to communicate with Congress and the American people,

including inaugural addresses and the State of the Union. The President’s inaugural address is an opportunity for a

President to tell Congress, the American public, and the rest of the world what he intends to do as President. TheState of the Union address originates from the constitutional requirement that the President “shall from time to timegive to the Congress Information of the State of the Union, and recommend to their Consideration such Measures ashe shall judge necessary and expedient.” The State of the Union has changed over time, moving back and forth

from a spoken to a written and back to a spoken address. The address focuses on what the president feels have beenthe highlights of the preceding year, as well as his goals for the year to come.

Events, Circumstances, Conditions

Presidential power is also affected by the political events, circumstances, and conditions facing the nation. APresident whose political party also controls Congress is usually in a better position than one who has to deal with aCongress controlled by the other party. Divided control of the federal government sometimes produces “gridlock,”an inability of the House of Representative, the Senate, and the President to agree on public policies. Crises havehistorically resulted in an increase in presidential power. In times of crisis, the public and other government officialslook to the President for leadership and give him leeway to select the appropriate policy responses to the crisis. Warsand other threats to national security, economic crises, and other emergency conditions have also tended to increase

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presidential power. The Great Depression of the 1930s created an expectation that the national government

respond to a national economic emergency. The President became the person held responsible for maintainingeconomic prosperity. The modern president who does not appear to be acting decisively to address problems islikely to suffer a loss of political support or public approval. Public opinion polling records the effects of events orcircumstances on public approval of the president. George W. Bush is a good example of the impact of events onpresidential popularity. He began his tenure in office with approval ratings of around 50%. Immediately after the9/ll terrorist attacks, his approval rating soared to nearly 90%. Since then, his approval rating has sunk to historiclows. When he left office, his approval rating was around 34%.

Public Opinion

In a democracy, public opinion can serve as an important source of presidential power or an important limit on it.Strong public support adds to a President’s formal powers, while weak public support subtracts from it. One of themost widely reported measures of public opinion about the president is the regular survey of job approval ratings.The President’s popularity as measured by job approval is regularly measured and widely reported as a kind ofpresidential report card.13 Unlike the constitutional and statutory powers, which are fairly constant, public

opinion is dynamic. For example, Obama’s approval ratings have followed the traditional pattern of high initial ap-proval, with eventual declines in approval ratings and increases in disapproval ratings. The changes in approvalratings have resulted in Obama having less power when he pursues his policy agenda.

The Media

Presidents typically have a love-hate relationship with the media. Presidents love to use the media to get theirmessage out, and Presidents love favorable coverage of themselves and their administration. But Presidents alsohate bad press, any critical media coverage of them or their administration. The love side of the relationship isevident in the eagerness of any administration to provide favorable photo opportunities that reinforce the imageof presidential leadership. The hate side of the relationship is apparent in statements by presidents from ThomasJefferson to Richard Nixon.

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POWERS OF PERSUASION - "THE BULLY PULPIT"

The fact that the president serves as chief executive and as the recognized head of state for the United States giveshim/her a great deal of persuasive power. But presidents have used a variety of methods to persuade the public andinfluencing the passage of legislation that they wish to see become law.According to the Constitution, the president must give a yearly speech before a joint session of Congress. Thisis called the "State of the Union Speech" and is one of the most important forums for the delivery of presidentiallegislative agendas and "wish lists" to Congress. But of course, this agenda is not binding on Congress and only asmall portion of the president’s agenda will ever become law.Another important persuasive power available to the president is the use of the office and its trappings. For instance,the president has the use of the "bully pulpit" meaning he/she can call the media together to deliver messagesthrough press conferences or through direct addresses to the American People. Another example of the use ofpresidential trappings is the impact of Air Force One. When this flying presidential office rolls onto the tarmac ofan airfield the president will often choose to make announcements or conduct press conferences with Air Force Onein the background simply because of its impressive impact on the validity of what the president has to say.Lastly, when the president is having difficulty getting a piece of legislation through Congress, he/she will choose tomake a series of phone calls directly to those legislators who he sees as possible stalling his agenda. If that strategydoesn’t impact the vote on his/her chosen legislation, the president may choose to "go public" to deliver a messagedirectly to the people in order to activate the public to contact their representatives in Congress to vote in a certainway on a piece of legislation that is important to the president.

Congressional Limitations on Presidential Power

Almost all presidential powers rely on what Congress does (or does not do). Presidential executive orders implementthe law but Congress can overrule such orders by changing the law. And many presidential powers are delegated pow-ers that Congress has accorded presidents to exercise on its behalf—and that it can cut back or rescind.

Congress can challenge presidential powers single-handedly. One way is to amend the Constitution. The Twenty-Second Amendment was enacted in the wake of the only president to serve more than two terms, the powerfulFranklin D. Roosevelt (FDR). Presidents now may serve no more than two terms. The last presidents to serve eightyears, Ronald Reagan, Bill Clinton, and George W. Bush, quickly became “lame ducks” after their reelection andlost momentum toward the ends of their second terms, when attention switched to contests over their successors.

Impeachment gives Congress “sole power” to remove presidents (among others) from office. [1] It works in twostages. The House decides whether or not to accuse the president of wrongdoing. If a simple majority in the Housevotes to impeach the president, the Senate acts as jury, House members are prosecutors, and the chief justice presides.A two-thirds vote by the Senate is necessary for conviction, the punishment for which is removal and disqualificationfrom office.

Prior to the 1970s, presidential impeachment was deemed the founders’ “rusted blunderbuss that will probablynever be taken in hand again.” [12] Only one president (Andrew Johnson in 1868) had been impeached—over policydisagreements with Congress on the Reconstruction of the South after the Civil War. Johnson avoided removal by asingle senator’s vote.

Links : Presidential Impeachment

Read about the impeachment trial of President Johnson at http://www.senate.gov/artandhistory/history/minute/The_Senate_Votes_on_a_Presidential_Impeachment.htm .Read about the impeachment trial of President Clinton at http://www.lib.auburn.edu/madd/docs/impeach.html .

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Since the 1970s, the conflict between Congress and the President have escalated. A bipartisan majority of the HouseJudiciary Committee recommended the impeachment of President Nixon in 1974. Nixon surely would have beenimpeached and convicted had he not resigned first. President Clinton was impeached by the House in 1998, thoughacquitted by the Senate in 1999, for perjury and obstruction of justice in the Monica Lewinsky scandal.

FIGURE 1.3Bill Clinton was only the second US pres-ident to be impeached for “high crimesand misdemeanors” and stand trial in theSenate. Not surprisingly, in this day ofhuge media attention to court proceed-ings, the presidential impeachment trialwas covered live by television and be-came endless fodder for twenty-four-hour-news channels. Chief Justice WilliamRehnquist presided over the trial. TheHouse “managers” (i.e., prosecutors) ofthe case are on the left, the president’slawyers on the right.

Much of the public finds impeachment a standard part of the political system. For example, a June 2005 Zogbypoll found that 42 percent of the public agreed with the statement “If President Bush did not tell the truth about hisreasons for going to war with Iraq, Congress should consider holding him accountable through impeachment.” [3]

Impeachment can be a threat to presidents who chafe at congressional opposition or restrictions. All three impeachedpresidents had been accused by members of Congress of abuse of power well before allegations of law-breaking.Impeachment is handy because it refers only vaguely to official misconduct: “treason, bribery, or other high crimesand misdemeanors.”

From Congress’s perspective, impeachment can work. Nixon resigned because he knew he would be removed fromoffice. Even presidential acquittals help Congress out. Impeachment forced Johnson to pledge good behavior andthus “succeeded in its primary goal: to safeguard Reconstruction from presidential obstruction.” [4] Clinton had to goout of his way to assuage congressional Democrats, who had been far from content with a number of his initiatives;by the time the impeachment trial was concluded, the president was an all-but-lame duck.

Judicial Limitations on Presidential Power

Most American Presidents claim inherent powers not explicitly stated but that are intrinsic to the office or impliedby the language of the Constitution. They rely on three key phrases. First, in contrast to Article I’s detailed powersof Congress, Article II states that “The Executive Power shall be vested in a President.” Second, the presidentialoath of office is spelled out, implying a special guardianship of the Constitution. Third, the job of ensuring that“the Laws be faithfully executed” can denote a duty to protect the country and political system as a whole.

Ultimately, the Supreme Court can and does rule on whether presidents have inherent powers. Its rulings haveboth expanded and limited presidential power. For instance, the justices concluded in 1936 that the president, theembodiment of the United States outside its borders, can act on its behalf in foreign policy.

But the court usually looks to congressional action (or inaction) to define when a president can invoke inherentpowers. In 1952, President Harry Truman claimed inherent emergency powers during the Korean War. Facinga steel strike he said would interrupt defense production, Truman ordered his secretary of commerce to seize themajor steel mills and keep production going. The Supreme Court rejected this move: “the President’s power, if any,to issue the order must stem either from an act of Congress or from the Constitution itself.”[5]

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KEY TERMS

Advice and ConsentAir Force OneAppointment PowersBully PulpitClemencyCommutationEmergency PowersExecutive Office of the President (EOP)Executive OrderExecutive PowersExecutive PrivilegeImpeachmentLegislative PowersMilitary PowersNominationPocket VetoSenate ConfirmationSigning StatementVetoWhite House Office (WHO)

Text Sources:

Lenz, Timothy O, and Mirya Holman. American Government . Gainesville: University Press of Florida, 2013.

Text Resources:

[1] The language in the Constitution comes from Article I, Section 2, Clause 5, and Article I, Section 3, Clause7. This section draws from Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York:Norton, 1973); John R. Labowitz, Presidential Impeachment (New Haven, CT: Yale University Press, 1978); andMichael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago:University of Chicago Press, 2000).

[2] The early twentieth-century political scientist Henry Jones Ford quoted in John R. Labowitz, Presidential Im-peachment (New Haven, CT: Yale University Press, 1978), 91.

[3] Polling Report, http://www.pollingreport.com/bush.htm , accessed July 7, 2005.

[4] Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: Norton, 1973), 139.

[5 Respectively, United States v. Curtiss-Wright Export Corp, 299 US 304 (1936); Youngstown Sheet & TubeCompany v. Sawyer, 343 US 579 (1952).

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www.ck12.org Chapter 1. Presidential Power and Limitations

References

1. Wikimedia Image Search CC SA 3.0. .2. . http://en.wikipedia.org/wiki/File:Senate_in_session.jpg .

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