THE EXECUTIVE BRANCH: THE OFFICE OF PRESIDENT

1. THE EXECUTIVE BRANCH:THE OFFICE OF PRESIDENT Topic #25

2. The Framers and the Presidency • Designing the office of President was one of the most difficult and creative aspects of their work. • They believed that a strong active executive was essential for good government. • But they had few models to copy: • Britain: monarchical executive; • Colonies: royal governors; • States: weak governors, dependent on legislature • One recent exception: newly adopted New York state constitution. • And they had to design the office in the face of widespread bias against a strong executive.

3. Hamilton, Federalist 70 • There is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.

4. The Executive Compromise • The Executive Compromise was a product, not of conflict among the delegates (like the Legislative and Commerce Compromises), but of shared uncertainty as to how to proceed. • This was the last main business of the convention, • and the delegates were anxious to wind up their business.

5. Executive Compromise (cont.) • The principal decisions: • The Constitution itself would establish the Executive (like the Supreme Court), • rather than authorizing Congress to establish the an executive (as suggested by the New Jersey Plan). • The Executive would be a unitary rather than plural office, i.e., • not an executive committee (as under the NJ Plan), and • no Executive Council (as some states retained). • The title of the unitary office would be President. • The Executive would have his own constitutionally enumerated powers, • rather than only powers delegated by Congress.

6. Executive Compromise (cont.) • The framers had great difficulty resolving the following questions: • Would the President have a fixed term of office? • If so, what would the length of the term be? • Would the President be eligible to serve more than one term? • How would the President be selected and by whom? • By Congress? • By the states? • By the people? • By some mixed system, perhaps involving “intermediate electors”? • The framers regarded these questions as interrelated, so they could not be decided separately.

7. Executive Compromise (cont.) • The convention delegated these questions to a committee that put together the final Executive Compromise: • The President would have a fixed term of four years. • He could be removed from office only through the impeach-ment process to which all civil officers of the U.S. are subject. • The President would be eligible to serve additional terms [partially reversed by the 22nd Amendment]. • The President would be selected by a “college of intermediate electors.” • There would a new executive office, that of Vice President. • We will consider the “Electoral College” (and the role of the Vice President in the selection process) later in the semester.

8. The Enumerated Powers of the President • Article II, Section 2. The President • shall be commander in chief of the Army and Navy; • may require the opinion, in writing, of the principal officer in each of the executive departments; • shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; • shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; • 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; • 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.

9. Enumerated Powers (cont.) • Article II, Section 3. The President • shall from time to time give to the Congress information of the state of the union, and • shall recommend to their consideration such measures as he shall judge necessary and expedient; • may, on extraordinary occasions, convene both Houses, or either of them; • shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed; and • shall commission all the officers of the United States. • The President has the veto power discussed in Topic #22-23 (part of Article I, not Article II). • The President shall take an oath [or affirmation] to faithfully execute the office of President of the United States, and to preserve, protect and defend the Constitution of the United States.

10. Interpretation of the Enumerated Powers • The list is short and some of the terms are ambiguous. • These powers could be interpreted in ways that would make the Presidency little more than a ceremonial head of state. • However, early Presidential actions (and Congressional) set precedents that led to more expansive interpretations of Presidential powers.

11. Expansive Precedents • The Commander-in-Chief power: • Congress declares war but then the President makes grand strategy and directs the war effort. • Historically, Congress has declared war if and only if requested by the President. • The President can repel, or retaliate against, attacks on the U.S. or its military forces. • The President can direct the movement of military and naval forces in peacetime as well as war. • Thus the President can engage in unilateral actions that may force the hand of Congress. • TR and the Great White Fleet • Significance of (General) Washington as the first President. • These Presidential powers became enormously more important when the U.S. became a world power.

12. Expansive Precedents (cont.) • The “opinions in writing” power: • Presidents have interpreted this to mean that executive officials report directly or indirectly to the President, as head of administration (and not [officially] to Congress). • The “removal power”: the Constitution is silent on how executive officials may be removed from office (other than by impeachment). • It is now accepted that most executive officials “serve at the pleasure of the President.” • Exception: Tenure in Office Act and the impeachment of President Andrew Johnson.

13. Expansive Precedents (cont.) • The treaty-making power: • The Washington-Jefferson story. • The President negotiates a treaty and then presents it to Congress as a fait accompli, i.e., under a (more or less) closed rule. • The power to receive ambassadors: • The President also decides which countries he will receive ambassadors from, i.e., what countries the U.S. will have diplomatic relations with, making the President chief diplomat. • Commander-in-chief + treaty making + chief diplomat implies President controls foreign policy. • Implications for 1940 onwards. • The “imperial presidency”?

14. The Vice Presidency • Article II, Section 1. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,7 the Same shall devolve on the Vice President. • The Tyler precedent, 1841. • 25th Amendment (1967), Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

15. Inherent Executive Power? • In addition to his enumerated powers (expansively interpreted), Congress often delegates additional powers to the President by legislation. • In the 20th century these delegated powers have been numerous and important (and pertain to domestic as well as foreign policy). • Congress can of course take back these delegated powers. • Does the Constitution gives the President “inherent executive powers” (which Congress cannot take away) beyond the enumerated ones?

16. Inherent Executive Power? • Powers “necessary and proper” for using the enumerated powers? • Executive privilege against Congressional or other intrusions on the inner working of the Presidency. • Executive orders: • Executive Order 9066 (1942): WWII Japanese relocation. • Executive Order 9981 (1948): desegregation of U.S. armed forces. • Executive agreements with foreign governments are not subject to Senate ratification but may have the force of treaties.

17. Inherent Executive Power? • Powers beyond the enumerated powers? • The vesting clause Article II, first line1: The executive power shall be vested in a President of the United States of America. • This accomplishes at least two things: • that there shall be a unitary executive. • that this unitary executive shall be called the President. • In contrast, Article I, first line: All legislative powers herein granted [i.e., enumerated below] shall be vested in a Congress of the United States. • Does the vesting clause therefore grant additional inherent executive powers to the President?

18. Executive Prerogative • John Locke, Second Treatise of Government, Chapter 14 • Where the legislative and executive power are in distinct hands, there the good of the society requires that several things should be left to the discretion of the executive power: for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, till the legislative can conveniently be assembled to provide for it. . . . This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative. . . .

19. Executive Prerogative • Does the President have such prerogative powers? • Jefferson and the Louisiana Purchase. • Lincoln claimed and exercised such powers during the civil war. • “Constitutional dictatorship” • Some other President have made claims along these lines, while others have explicitly denied themselves such powers.

20. TR’s “Stewardship Theory” • Theodore Roosevelt: • My view that every executive officer, and above all the President, was a steward of the people bound actively and affirmatively to do all he could for the people…. I declined to adopt the view that what was imperatively necessary for the national by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded, unless such action was forbidden by the Constitution or by the laws.

21. Taft’s Rebuttal • William Howard Taft: • The true view of the Executive function is that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as necessary and proper to its exercise. Such a specific grant of power must be either in the federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.

22. The Supreme Court and Executive Power • Why has the Supreme Court not resolved these constitutional issues? • Most exercises of (claimed) executive power are in the military and foreign policy areas and • do not often produce legal cases that might reach the Court, or • are politically explosive and the Court exercises judicial self-restraint. • When the Court has spoken, it has often • spoken with a mixed voice, or • given a mixed answer.

23. The Steel Seizure Case • Youngstown Sheet & Tube Co. v. Sawyer (1952): • Invoking his power as commander-in-chief (in wartime) and inherent executive power, President Truman “seized” the steel industry to forestall a strike that would shut down was production. • The Court ruled 6-3 against the President. • Three justices concluded that the President lacked the power to seize the industry because neither his enumerated powers nor any act of Congress authorized him to do this. • Three justices concluded that the President lacked the power in this case because it was not an enumerated power and Congress had considered legislation to give the President such a power but had specifically decided against it. • Three justices concluded that the President had the powers he claimed.

24. The Nixon Tapes Case • United States v. Richard Nixon (1974) • President Nixon invoked executive privilege to keep the White House tapes from the Watergate Special Prosecutor. • The Supreme Court ruled 8-0 against the President (with one recusal). • The opinion said that • the President has a power of executive privilege, based on “necessary and proper” considerations, but • this power is not unlimited and courts determine its limits in particular cases. • “It is emphatically the province and duty of the judicial department to say what the law is” (Marbury v. Madison).