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The American President
He's been called the most powerful man in the world. That may be, but you wouldn't think so by reading the Constitution.Abstract:
The U.S. presidency (the "Executive Branch") is the second of the three branches of government established in the Constitution. (The first is the "Legislative" – the Congress; the third is the "Judicial" branch – the Supreme Court and subordinate federal courts.) The popular American myth that the three branches of government are "separate and equal" has no basis in the Constitution. While the branches certainly are separate, with fairly clear demarcations of authority, one finds no hint of an "equal" division of authority among them in the Constitution. Rather, the founders clearly indicated precedence when they gave both pride of place in the Constitution and the lion's share of power to Congress (including the power to remove the President under circumstances which Congress itself defines), the only branch with representatives elected directly by the people, and therefore having the clearest democratic mandate. The President, who is not elected directly by the people, was given limited authority, and is answerable in all his actions to the more representative Congress.
Constitutional Powers of the President
We can count some nine distinct presidential powers under the Constitution. Those are the powers the first "G.W." had in 1789, and they're all that the current "G.W." has. (Pardon the unfortunate linkage of these two individuals – the legendary with the laughable.) The Constitution's 27 amendments have not added an iota to presidential power. (Well, they have indirectly, in that they have added immensely to the power of Congress, which in turn has delegated much of this power to the President.) Only three of the President's nine constitutional powers have substance: The so-called veto power, "executive power", and his position as commander in chief of the armed forces. The rest are largely housekeeping, and are listed for completeness at the end of this essay. (Yes, it's true that the appointment power can be significant, but since it requires Senate concurrence it largely amounts to an authority to nominate.)
The President's constitutional powers are enumerated in Article II of the Constitution. The substantive powers are:
1. "Veto" powerAnd that's that. Those are the constitutional powers of the President, adding only the shared or trivial powers listed at the end of this essay. As we see, except for the limited "veto" power, the President depends on the Congress to establish policy, both in his "Executive" and in his "Commander in Chief" roles.
Extra-constitutional Powers of the President
There has been a considerable shift of working authority from the Congress to the presidency over the last few decades. Just as the Board of a corporation delegates day-to-day operations to an Executive Officer, so does the Congress permit the national Executive Officer (the President) to make decisions as long as these conform to the legislative and budgetary orders from Congress. But independent policy-making by the President, outside the bounds of his congressional instructions, is neither authorized nor envisioned in the Constitution. So even though we in the U.S. make much of our chief executive, make him in fact the titular head of the government, the power of the President is narrowly circumscribed by the Constitution, as discussed above; the de facto delegation of power to the President is at the pleasure of Congress, which may recall much of the President's authority if it so chooses, both through its legislative and budgetary processes and through its authority to disapprove or terminate appointments of federal civilian and military officers.
So why has it been the "pleasure of Congress" to allow various powers to drift to the President? (And "drift" is a good word for the process by which many of the powers currently exercised by Presidents have been assumed without formal delegation by Congress, but without effective congressional objection.) One reason is the lack of a clear power center in Congress. No politician voluntarily surrenders power, but the body of Congress has given up power to the President because congressional power is diffuse, and is not gathered in one individual. This diffusion was certainly the intent of the framers of the Constitution, though it's doubtful that they foresaw the increased Presidential power, which they had not specifically designed. The lack of an effective power center in Congress has made this drift of exercise of authority to the President a matter of practical necessity for the Congress, though it has been done grudgingly. Because the amendments to the Constitution have added vastly to the authority and responsibility of Congress, and because Congress has been unable to keep up with its own overactive legislative ambitions, the legislators have increasingly seen the need to shove policy decisions over on the President.
While the President's constitutional powers were, and still are, quite limited, the rise of political parties in the U.S. has done more to focus power in the presidency than any other factor. Both the election activities of the parties and their formalized role in the Congress (which the founders had neither provided for nor foreseen), have, ironically, contributed to the migration of power from Congress to the presidency. Ironic because one would expect that the self-organizing of Congress – in which the party system has been fundamental – would tend to focus authority within that body and thus serve to resist loss of its power. This has indeed been the case when the Congress has been controlled by the "opposing" party. (Reflect for a moment on why we don't refer to the President as being of the "opposing" party when the other party has power in Congress. It is because the President, not the Congress, has become the primary seat of power in our minds.) But when the President has had a Congress controlled by his own party, party considerations have outweighed the natural power struggle of the two branches, and the power of the President has grown. The actual primary business and purpose of each Member of Congress (and therefore of the Congress) is of course re-election, and majority party members find that success of their party program – which will help with this "primary business" – depends on the success of a same-party President. It has therefore been in the self-interest of Congress to support a President of their own party, and even to feed him the additional powers he covets. It's true that when the "opposition party" rules Congress, the relationship between the two branches reverts to its natural antagonism, but this has rarely resulted in powers once granted the President being rescinded. So the overall effect of the party system has been the growth of presidential power to include – in more and more areas – policy-making, a privilege once the province of Congress.
So in the end ...
Political scientist Richard Neustadt has expressed the powers of the President as, "Presidential power is the power to persuade and the power to persuade is the ability to bargain." ** Presidential power is above all about getting his way in the endless battle with Congress, particularly over the annual appropriations. What gives a President the ability to bargain successfully with Congress? What sticks and carrots does he have? It comes down to a question of what he can do for, or do to, the various members of Congress, particularly those of his own party. And that question resolves to the matter of the next election, the "primary business" of Congress. So the power of the President depends on his coat-tails. If he's popular, he'll have extraordinary influence with his own party in Congress, and it may be hazardous (in the electioneering sense) for even the opposing party in Congress to fight him. If he's unpopular, opposing the President may be of political benefit, even to those within his own party, and thus power passes to the Congress.
So we have a President who really wasn't given very much independent authority by the writers of the Constitution, but who today exercises a great deal of power. Is that the way we want it, or has this change happened in the dark of night, without the American people being aware of it? What role do we really want for the President? The one the framers of the Constitution envisioned, with rather limited powers, or the one we have, with very great powers in practice? Presumably this is not an either-or question, and I personally come down firmly somewhere in the middle. The framers were concerned about giving too much power to one man. They were familiar with abuse of power, both personally and from history; we have seen more and worse abuses since then. If someone is given unchecked power, abuse of that power will follow in time. That appears to be a reliable rule. On the other hand, the framers had just experienced thirteen years of irresolute lack of leadership under the Articles of Confederation, when a part-time Congress was expected to manage all federal affairs, as there was no provision for a president. That system proved unworkable. These lessons point us to the middle ground (where I'd be firmly planted if it weren't so boggy here. . .), and it's clear that the flux of operational and policy power between the President and Congress will always be on shifting ground. But as the clear trend of this shifting ground has been toward the presidency, we need a Congress that will insist on its share of power, and that will restrict the President to his proper role of executing the laws and policies as they are established by "The People in Congress Assembled".
The President's remaining constitutional powers, from Article II of the Constitution, are:
4. The President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices". (Art.II, Sec.2)
5. The President "shall have Power to grant Reprieves and Pardons for Offences against the United States". (Art.II, Sec.2)
6. The President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties". (Art.II, Sec.2)
7. The President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." (Art.II, Sec.2)
8. "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." (Art.II, Sec.2)
9. The President "may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper". (Art.II, Sec.3)
** Courtesy Wikipedia on-line encyclopedia.