Powers of the President of the United States

The President of the United States has numerous powers, including those explicitly granted by Article II of the United States Constitution.

The Constitution explicitly assigned the president the power to sign or veto legislation, command the armed forces, ask for the written opinion of his or her Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. The president may make treaties which need to be ratified by two-thirds of the Senate. The president may also appoint Article III judges and some officers with the advice and consent of the U.S. Senate. In the condition of a Senate recess, the president may make a temporary appointment.

Executive powers

Within the executive branch itself, the president has broad powers to manage national affairs and the priorities of the government. The president can issue rules, regulations, and instructions called executive orders, which have the binding force of law upon federal agencies but do not require approval of the United States Congress. Executive orders are subject to judicial review and interpretation.

The Budget and Accounting Act of 1921 put additional responsibilities on the presidency for the preparation of the United States federal budget, although Congress was required to approve it.[1] The act required the Office of Management and Budget to assist the president with the preparation of the budget. Previous presidents had the privilege of the impound funds as they saw fit, however the United States Supreme Court revoked the privilege in 1998 as a violation of the Presentment Clause. The power was available to all presidents and was regarded as a power inherent to the office. The Congressional Budget and Impoundment Control Act of 1974 was passed in response to large-scale power exercises by President Nixon. The act also created the Congressional Budget Office as a legislative counterpoint to the Office of Management and Budget.

The president, as the Commander in Chief of the United States Armed Forces, may also call into federal service individual state units of the National Guard. In times of war or national emergency, the Congress may grant the president broader powers to manage the national economy and protect the security of the United States, but these powers were not expressly granted by the United States Constitution. The Vietnam War, in 1973, Congress expeditiously passed the War Powers Act and severely limited the ability of the President to conduct warfare without Congressional approval. Congress was constitutionally provided the power to declare the war,[2] but if the president needed to send the troops to other countries for emergency reasons, approved statutes required the notification of Congress within forty-eight hours. For any time beyond sixty days, further congressional approval was required.

The president has several options when presented with a bill from Congress. If they agree with the bill, then they can sign it into law within ten days of receipt. If the president opposes the bill, they can veto it and return the bill to Congress with a veto message suggesting changes unless the Congress is out of session then the president may rely on a pocket veto.

Presidents are required to approve all of a bill or none of it; selective vetoes have been prohibited. In 1996, Congress gave President Bill Clinton a line-item veto over parts of a bill that required spending federal funds. The Supreme Court, in Clinton v. New York City, found Clinton's veto of pork-barrel appropriations for New York City to be unconstitutional because only a constitutional amendment could give the president line-item veto power.

When a bill is presented for signature, the president may also issue a signing statement with expressions of their opinion on the constitutionality of a bill's provisions. The president may even declare them unenforceable but the Supreme Court has yet to address this issue.

Congress may override vetoes with a two-thirds vote in both the House and the Senate. The process has traditionally been difficult and relatively rare. The threat of a presidential veto has usually provided sufficient pressure for Congress to modify a bill so the President would be willing to sign it.

Much of the legislation dealt with by Congress is drafted at the initiative of the executive branch. The president may personally propose legislation in annual and special messages to Congress including the annual State of the Union address and joint sessions of Congress. If Congress has adjourned without acting on proposals, the president may call a special session of the Congress.

Beyond these official powers, the U.S. president, as a leader of his or her political party and the United States government, holds great sway over public opinion whereby he or she may influence legislation.

To improve the working relationship with Congress, presidents in recent years have set up an Office of Legislative Affairs. Presidential aides have kept abreast of all important legislative activities.

Powers of Appointment

The President of the United States has several different appointment powers.

Before taking office, the president-elect must appoint more than 6,000 new federal positions.[3] The appointments range from top officials at U.S. government agencies, to the White House Staff, and members of the United States diplomatic corps. Many, but not all, of these positions are appointed by the president with the advice and consent of the United States Senate.

The president also has the power to nominate federal judges, including members of the United States Courts of Appeals and the U.S. Supreme Court. However, these nominations do require Senate confirmation, and this can provide a major stumbling block for presidents who wish to shape their federal judiciary in a particular ideological stance.

As head of the executive branch, the president must appoint the top officials for all of the federal agencies. These positions are listed in the Plum Book which outlines more than seven thousand appointive positions in the government. Many of these appointments are made by the president. In the case of ten agencies, the president is free to appoint a new agency head. For example, it is not unusual for the CIA's Director or NASA's Administrator to be changed by the president. Other agencies that deal with federal regulation such as the Federal Reserve Board or the Securities and Exchange Commission have set terms that will often outlast presidential terms. For example, governors of the Federal Reserve serve for fourteen years to ensure agency independence. The president also appoints members to the boards of directors for government-owned corporations such as Amtrak. The president can also make a recess appointment if a position needs to be filled while Congress is not in session.

In the past, presidents had the power to appoint all members of the United States civil service. This use of the spoils system allowed presidents to reward political supporters with jobs. Following the assassination of President James Garfield by Charles J. Guiteau, a disgruntled office seeker, Congress instituted a merit-based civil service in which positions are filled on a nonpartisan basis. The Office of Personnel Management now oversees the staffing of 2.8 million federal jobs in the federal bureaucracy.

The president must also appoint his or her staff of aides, advisers, and assistants. These individuals are political appointments and are not subject to review by the Senate. All members of the staff serve "at the pleasure of the President".[4][5] Since 1995, the president has been required to submit an annual report to Congress listing the name and salary of every employee of the White House Office. The 2011 report, which can be viewed on the White House website, lists 454 employees.[6]

Executive clemency

Article II of the United States Constitution gives the president the power of clemency. The two most commonly used clemency powers are those of pardon and commutation. A pardon is an official forgiveness for an acknowledged crime. Once a pardon is issued, all punishment for the crime is waived. The person accepting the pardon must, however, acknowledge that the crime did take place.[7] The president maintains the Office of the Pardon Attorney in the U.S. Department of Justice to review all requests for pardons. Most pardons are issued as oversight of the judicial branch, especially in cases where the Federal Sentencing Guidelines are considered too severe. Pardons are controversial when they appear to be politically motivated.

This power can check the legislative and judicial branches by altering punishment for crimes. Presidents can issue blanket amnesty to forgive entire groups of people. For example, President Jimmy Carter granted amnesty to Vietnam draft dodgers who had fled to Canada. Presidents can also issue temporary suspensions of prosecution or punishment in the form of respites. This power is most commonly used to delay federal sentences of execution.

The president can also commute a sentence which, in effect, changes the punishment to time served. While the guilty party may be released from custody or not have to serve out a prison term, all other punishments still apply. President George W. Bush commuted the sentence of White House staffer Lewis "Scooter" Libby.

Foreign affairs

Under the Constitution, the president is the federal official that is primarily responsible for the relations of the United States with foreign nations. The president appoints ambassadors, ministers, and consuls (subject to confirmation by the Senate) and receives foreign ambassadors and other public officials. With the secretary of state, the president manages all official contacts with foreign governments.

On occasion, the president may personally participate in summit conferences where heads of state meet for direct consultation. For example, President Wilson led the American delegation to the Paris Peace Conference in 1919 after World War I; President Franklin D. Roosevelt met with Allied leaders during World War II; and every president sits down with world leaders to discuss economic and political issues and to reach agreements.

Through the Department of State and the Department of Defense, the president is responsible for the protection of Americans abroad and of foreign nationals in the United States. The president decides whether to recognize new nations and new governments, and negotiate treaties with other nations, which become binding on the United States when approved by two-thirds of the Senate. The president may also negotiate "executive agreements" with foreign powers that are not subject to Senate confirmation.

Emergency powers

The Constitution does not expressly grant the President additional powers in times of national emergency. However, many scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Because the Constitution remains silent on the issue, the courts cannot grant the Executive Branch these powers when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the President.

A claim of emergency powers was at the center of President Abraham Lincoln's suspension of habeas corpus without Congressional approval in 1861. Lincoln claimed that the rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the writ. With Chief Justice Roger Taney sitting as judge, the Federal District Court of Maryland struck down the suspension in Ex Parte Merryman, although Lincoln ignored the order. 17 F. Cas. 144 (1861).

President Franklin Delano Roosevelt similarly invoked emergency powers when he issued an order directing that all 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 steel because of a labor strike in 1952. With the Korean War ongoing, Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped. The U.S. Supreme Court, however, refused to accept that argument in Youngstown Sheet & Tube Co. v. Sawyer, voting 6-3 that neither Commander in Chief powers nor any claimed emergency powers gave the President the authority to unilaterally seize private property without Congressional legislation. 343 U.S. 579.

Executive privilege

Executive privilege gives the (president) 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 an unpopular treaty negotiation with Great Britain. While not enshrined in the Constitution, Washington's action created the precedent for privilege. When Richard Nixon tried to use executive privilege as a reason for not turning over subpoenaed evidence to Congress for the Watergate hearings, the Supreme Court ruled in United States v. Nixon that privilege did not apply in cases where a president was attempting to avoid criminal prosecution. Later President Bill Clinton lost in federal court when he tried to assert privilege in the Lewinsky affair. The Supreme Court affirmed this in Clinton v. Jones, which denied the use of privilege in cases of civil suits.

Constraints on presidential power

Because of the vast array of presidential roles and responsibilities, coupled with a conspicuous presence on the national and international scene, political analysts have tended to place great emphasis on the president's powers. Some have even spoken of "the imperial presidency", referring to the expanded role of the office that Franklin D. Roosevelt maintained during his term.

President Theodore Roosevelt famously called the presidency a "bully pulpit" from which to raise issues nationally, for when a president raises an issue, it inevitably becomes subject to public debate. A president's power and influence may be limited, but politically the president is certainly the most important power in Washington and, furthermore, is one of the most famous and influential of all Americans.

Though constrained by various other laws passed by Congress, the president's executive branch conducts most foreign policy, and his or her power to order and direct troops as commander-in-chief is quite significant (the exact limits of what a president's military powers without Congressional authorization are open to debate).

The Separation of Powers devised by the founding fathers was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as "checks and balances". For example, the President appoints judges and departmental secretaries, but these appointments must be approved by the Senate. The president can veto bills, or deny them. If he does that, the bill is sent back to Congress.

See also

References

  1. ↑ http://www.whitehouse.gov/sites/default/files/omb/circulars/a11/current_year/s10.pdf
  2. ↑ "United States Constitution". United States Senate. September 17, 1787. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
  3. ↑ http://nationalparalegal.edu/conlawcrimproc_public/federalism/presidentialpowers.asp
  4. ↑ http://www.archives.gov/publications/prologue/2005/winter/senate-nominations.html Serving at the Pleasure of the President: The Nomination Papers of the United States Senate, 1789–1946
  5. ↑ http://www.archives.gov/federal-register/codification/executive-order/11183.html Executive Order 11183--Establishing the President's Commission on White House Fellowships
  6. ↑ 2011 Annual Report to Congress on White House Staff
  7. ↑ http://www.justice.gov/pardon/pardon_instructions.htm
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