The American President

October 2006

Abstract:
The U.S. Constitution gives the President remarkably limited power.
His (constitutional) job is largely to carry out the policies of Congress.
The Presidency of the United States is (constitutionally) not a policy-making position.

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" power
     Every adopted bill shall "be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall ... proceed to reconsider it."  (Art.I, Sec.7)

The word "veto" is not used in the Constitution, and as we know, the President does not actually have absolute veto power.  He has, rather, the power to require a two-thirds majority in each house of Congress for passage of a bill of which he disapproves.  This is a substantial power;  it is actually a legislative power, so that the much touted separation of powers between the legislative and executive branches is not absolute. The President has, in effect, the equivalent of 72 extra votes in the House and 16 extra votes in the Senate.  That is, in order to override a presidential veto, proponents in each house must come up with that many more votes than if the President approves of the bill.  This  –  forcing Congress to show that it has strong support for a bill  –  is the only constitutional power the President exercises directly over legislation.  (Well, there's also the Vice President's right to cast a tie-breaking vote in the Senate, which would normally be cast to support the President's view. This can be seen as a quick version of the "veto," in cases where the President opposes the bill. It has more significance in bringing to the President a bill he approves of, that would otherwise have been rejected in the Senate. Formally, this is a power of the Vice President, not of the President.)  It's no secret that the President can influence legislation in other ways than by a threatened "veto," and these very real but extra-constitutional powers will be considered below.

2.  Executive power
     "The executive Power shall be vested in"  the President.  (Art.II, Sec.1)

What is "executive power"?  Unfortunately, the Constitution does not give a real job description of the presidency, and does not define "executive power".  In fact, the Constitution doesn't define any of its terms;  that's one of the major difficulties in interpreting it.  We know that many words and phrases did not mean quite the same to those who wrote the Constitution in 1787 as they mean to us today.  (And the Supreme Court can't agree to what extent we're bound by what was once meant, or are free to choose more modern meanings.)  But, in general, the phrase "executive power" must mean  –  as it does in the business world today  –  authority necessary to execute policy or instruction from those who are established to formulate policy.  In business, "those" are the company's board of trustees, the governing board.  Under the U.S. Constitution, the "board" is the U.S. Congress, which sets national policy by passing laws, and implements them by more or less specific instructions to the President in the annual budget appropriations and in laws and resolutions.  It's important to keep in mind that while authority to exercise "executive power" is established for the President in the Constitution, the details that turn this authority into power are delegated by Congress. Thus, by and large, "executive power" is delegated power.  The President executes national policy; he does not have authority to establish policy, except to the extent that he is given policy latitude in the laws and resolutions passed by Congress.  The national policy maker, both for internal and foreign affairs, and indeed the implementer, is Congress.  We hire the President to execute the instructions of Congress.  (Having said this, we recognize that over the years the executive power of the President has, in more and more areas, and to a degree hardly anticipated by the authors of the Constitution, become de facto policy-setting power.  We'll get back to this below.)

3.  Commander in Chief
     "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States".  (Art.II, Sec.2  –   Only Congress has the power to actually call the state militias  – the "National Guard" – into national service.)

"Commander in Chief" has traditionally been a military designation, though just how the founders intended the "CinC" to relate to the military in the 1780s is unclear.  (They clearly had General Washington in mind as future President when they wrote the Constitution.)  The usual current interpretation is that the President remains a civilian and does not take a dual civilian/military role.  Nevertheless, it's clear that the "CinC" acts under the orders and authority of Congress:  Congress has a constitutional mandate to determine the size and composition of the armed forces, to make the regulations for their organization and their employment, and can by budgetary and legislative means stop any military plans and activities.  Without budgetary authorization and general orders from Congress, the Commander in Chief cannot employ the armed forces.  Thus "CinC" is not a policy-making position, except within the latitude granted by directives of Congress.

[For background:  The U.S. military has traditionally had several CinC's (pronounced "sink") commanding major theaters of operation.  The admiral or general in charge of all forces in the Pacific, for example, has had the designation "Commander in Chief Pacific", or "CinCPac" in military shorthand.  (I'm told by a naval officer friend that these designations were recently changed by Secretary Rumsfeld to emphasize that only Mr. Bush is "Commander-in-chief".  The military brass now have to be satisfied with being just "Commander".)  The President as "Commander in Chief of the Army and Navy" (we could call it "CinCArmNav") has in effect the highest military designation, in charge of the Chiefs of Staff of the various services.  But, like the other (former) CinC's, the President in his role as "CinCArmNav" works under orders, in this case from Congress.]

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)
A rather modest power, written when the President presided over the mails and a couple of ships. The nature of administrative reporting may have changed a bit since then.

5.  The President "shall have Power to grant Reprieves and Pardons for Offences against the United States".  (Art.II, Sec.2)
Best remembered are President Ford's pardon of Nixon, and Clinton's rash of last-day pardons for many of his own and his wife's friends and political benefactors.  This power is unique in the Constitution as the only one given absolutely to the President, with no check by the Congress or the Court.  Its recent use should stand as a warning.

6.  The President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties".  (Art.II, Sec.2)
The President's power here is that of negotiating a treaty and proposing this to the Senate.  Without the Senate's agreement, there is no treaty.  On the other hand, Congress has no authority to make treaties, so if a treaty is to be made it requires both parties.  Very much a shared power. (Past presidents sometimes involved key senators in the treaty negotiations, in the hope of ensuring the treaty's smooth sailing through the Senate, but this practice did not always have the effect that the President had expected, and has fallen out of use.)

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)
Another shared power.  The President may nominate for the Senate's consideration officers of the Executive department and of the federal courts.  Congress has in fact vested in the President the right to make direct appointment of "inferior" officers. (The Senate treasures its opportunity to consent to "superior" officers, since these usually involve televised hearings. During the TV age, most members of Congress who have felt the need to offer themselves to the nation as a presidential candidates have felt the first itching of their own greatness in front of the TV cameras at a significant hearing.)

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)
A stop-gap interim authority for the President, and the reason John Bolton now is embarrassing the U.S. at the United Nations.  (The reader may wonder about the precise meaning of the phrase "Vacancies that may happen during the Recess of the Senate."  Does it refer only to positions that actually become vacant during a Senate recess? Sounds like it to me, but the federal courts have held that the phrase can be interpreted as "are vacant" during the recess. Thus, in the recent case, when the Senate rejected Mr.Bush's nomination of Mr.Bolton as U.N. Ambassador, the President simply waited until the Congress was in recess, then appointed Mr.Bolton anyway, under his reading of Art.II, Sec.2. Pretty tricky, and perhaps not what the framers envisioned.)

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)
So here's a sop of authority over Congress.  The President may call them into session in emergencies, and in the strange case that they can't decide when to go home, he may decide for them.

* Courtesy Wikipedia on-line encyclopedia.