President I. Deliberations at the Constitutional Convention



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PRESIDENT

I. Deliberations at the Constitutional Convention.

    A. Alternatives.

1. Some proposed a plural executive.

        2. Some wanted an executive council to have veto power over presidential actions.

        3. Some wanted a President with a life term.

        4. Eventually, compromises brought about a single, elected President with a fixed term of office.

    B. Concerns of the Founders.

        1. Fear of an excessively strong President.

              a. Fear that the presidency would be the “fetus of monarchy”.

           b. Concern over no term limits.

        2. Fear of an excessively weak President who would become a “tool of the Senate” because of its ratification and confirmation powers.

        3. The basic problem of creating a presidency was expressed by Gouverneur Morris: “Make him too weak: the legislature will usurp his powers. Make him too strong: he will usurp the legislature.

    C. Election of the President.

        1. Some wanted Congress to elect the President.

        2. Some wanted a direct election. 

            Problems: 

                a. Inordinate weight to large states.

             b. Demagogues might have excessive appeals to the masses.

             c. Illiteracy was common.

             d. Communication was poor.

        3. The compromise: the Electoral College.

                  a. The people had some input.

              b. Large states had a good amount of influence, but small states were protected by having a minimum of three electoral votes.

              c. Small states would also have a great deal of clout if the election were thrown into the House and it was assumed that this would happen often since the two party system was not anticipated. Under this scenario, each state has one vote and small states are therefore grossly over represented.

    D. Term of office: Fear of an unlimited number of terms of office were quieted when Washington chose not to run for a third term. This precedent was followed until 1940.

II. The first Presidents: Washington-Monroe, 1789-1825

    A. All eminent men who were active in the movement for independence. All but Adams served two terms and all but Adams were Virginians.

    B. Though Washington warned against it, political parties developed.

    C. Ageneral “rule of fitness” prevailed in making appointments. Partisanship did become a factor, but generally only well-respected men received appointments.

    D. The presidency was kept modest. It was assumed that Congress would take the leading role in the new national government.

III. Andrew Jackson, 1829-1837, and the expansion of presidential power.

   A. Use of spoils system.

    B. Jackson vetoed 12 acts of Congress, more than all his predecessors combined.

    C. Jackson ignored a Supreme Court order regarding Indian removal.



IV. The reemergence of Congress, 1837-1932.

      A. With the end of Jackson’s second term, Congress quickly reestablished its power.

    B. There were some brief flashes of presidential power,

    C. With the exceptions of Theodore Roosevelt and Woodrow Wilson, the presidency was seen as a negative force -- a source of opposition to Congress, not a source of initiative and leadership for it. This was best illustrated by Grover Cleveland’s 414 vetoes, more than any President until FDR.

    D. Today, we are used to thinking that the President initiates legislative programs and Congress then responds; until the 1930’s, however, the opposite was usually the case.

    E. In the past, it took either a strong personality or a crisis for the President to become the central figure of government.



V. Emergence of the presidency.

   A. In the 20thCentury,the Great Depression  led to increased presidential power.

    B. With the onset of World War II, a foreign policy crisis led to continued presidential power.

    C. The development of the Cold War facilitated continued presidential initiative and power:

    D. In the 1970’s, Congress finally reasserted itself, but with mostly short-term results. Reagan restored the power and prestige of the presidency.

   E. Today we see Congress granting more powers to the President as we fight a war against terrorism.



OVERVIEW OF THE PRESIDENCY

I. Official Qualifications.

   A. Natural-born citizen.

    B. At least 35 years of age.

    C. Residency for at least 14 years.



II. Term of Office

   A. Four years.

    B. Maximum of two elected terms.

        1. Washington’s precedent was institutionalized by Amendment 22.

        2. Passage of 22nd Amendment was due to the Republican Congress’ concern over future FDR’s.

        3. It ispossible to serve just under 10 years in office if a V.P. becomes President just after the midpoint of a President’s term of office. If a V.P. serves less than half of a President’s term, he can be elected to the presidency twice. If a V.P. serves more than half of a President’s term, he can be elected to the presidency only once.

              a. Lyndon Johnson succeeded JFK in 1963, and was therefore eligible to be elected twice.

          b. Gerald Ford succeeded Nixon in 1974, and was therefore eligible to be elected only once.

  III. Compensation.

      A. Set by Congress. It cannot be raised or lowered during the President’s term of office for fear of Congress using undue influence.

    B. Salary was raised from $200,000 to $400,000 in 2001. (First raised since 1969)

    C. Numerous other “perks.”

    D. An opportunity to make some serious money after leaving office:

          1. Speaking fees

        2. Writing memoirs

        3. Serving on corporate boards of directors

  IV. Succession.

     A. If the office of the presidency is vacant due to death, resignation, or impeachment and removal, the V.P. becomes President. (He in turn nominates, and Congress confirms, a new VP). If the V.P. dies before his inauguration as President, the line of succession is as follows: Speaker, Senate President Pro Tem, Sec. of State, Sec. of Treasury, Sec. of Defense, and then the other Cabinet secretaries in the order of the creation of their offices.

    B. If the President is disabled, the 25th Amendment applies:

        1. The President informs the Congress of disability and the V.P. becomes Acting President.

        2. If the President is unable to inform Congress, the V.P. and a majority of Cabinet secretaries can go to the Congress and receive approval for the V.P. to

    3. In either case, the President regains powers by informing the Congress of his intent to return. In case of a dispute, Congress has the power to decide who shall be President.



GROWTH OF PRESIDENTIAL POWER

I. Original conception of the Founders: Congress, not the President, was to be the dominant power.

    A. Some Presidents have had a limited view of the office and have let Congress take the initiative.

    B. However, recent Presidents have tried to assume more control and greater leadership by taking the initiative themselves. The power of the office has grown considerably throughout most of this century.

II. Non-constitutional sources of presidential power.

   A. Unity of the office: the office is held by one man, as opposed to the 535 member Congress.

    B. Presidential character and personality: Strong personalities can have great impact.

    C. Growing complexity of society: With a highly industrial and technological society, people have demanded that the federal government play a larger role in areas of public concern. The executive branch has thus grown to meet those public demands.

    D. Congressional delegation of authority to the executive branch.

        1. Congress often writes broadly-worded legislation and lets executive agencies “fill in the holes.

        2. Congress often bows to presidential demands in time of economic or foreign crisis.

        3. Congress often bows to the President when he can proclaim a mandate from the

      E. Development of the mass media casts the President into the public eye. Presidents use television as the “electronic throne.”

    F. Emergence of the U.S. as the great superpower after WWII. Development of the Cold War placed the U.S. into a virtual non-stop crisis situation after 1945.This led to an assumption of great powers by the President to deal with various crises.

     G. 9-11 appears to have replaced the Cold War as a source of power for the President.

III. Three rules of thumb to maximize presidential power and effectiveness.

   A. “Move it or lose it.” Presidents should get things done early in their terms when their popularity is at its highest.

    B. “Avoid details.” Don’t try to do too much. Concentrate on a few top priorities.

    C. “Cabinets don’t get much done; people do.” Place more trust in immediate White House staff to accomplish tasks instead of Cabinet secretaries who have divided loyalties.

 ROLES OF THE PRESIDENT

I. Constitutional roles.

    A. Chief Legislator.

        1. Powers.

            a. Proposes legislation.

          b. Vetoes legislation

          c. Calls special sessions of Congress.

            d. Makes a State of the Union Address to Congress.

        2. Checks.

            a. Congress need not pass suggested legislation.

          b. Congress can override a Presidential veto with a 2/3 majority in both houses.

   B. Chief Executive.

         1. Powers.

              a. Enforces laws, treaties, and court decisions.

            b. Appoints officials to office, and can fire them.

            c. Issues executive orders, which have the force of laws, to carry out laws.

          2. Checks.

                a. Congress passes the laws and has the “power of the purse.”

              b. Senate can reject appointments and treaties.

              c. Impeachment (by House) and removal (by Senate)

              d. Supreme Court can strike down executive orders

        C. Commander in Chief

            1. Power- The President is the head of the armed forces

            2. Checks.

                a. Congress appropriates funds for the military.

              b. Congress declares war.

              c. War Powers Act of 1973



D. Chief Diplomat.            

            1. Powers.

                  a. Sets overall foreign policy.

              b. Appoints and receives ambassadors.

              c. Negotiates both treaties and executive agreements.

              d. Gives diplomatic recognition to foreign governments.

            2. Checks.

              a. Congress appropriates funds for foreign affairs.

              b. TheSenate can reject ambassadors and treaties.

        E. Chief of State

                    1. The ceremonial head of our nation.

                    2. Most nations separate the Chief Executive and Chief of State roles but the office of the presidency

        F. Chief Jurist.

                1. Powers.

                    a. Appoints federal judges.

                         b. Issues pardons and amnesty.

                2. Checks.

                    a. Senate can reject judicial appointments.

                    b. Senators can place “holds” on appointments.

  II. Non-constitutional roles.

          A. Head of Political Party.

              1. Selects the party’s chairman of the national committee and the vice presidential nominee.

             2. Political patronage.

          B. Chief Economist.

            1. Responsible for the overall health of the economy.

            2. Proposes the federal budget.



PRESIDENTIAL SUPPORT STAFF

I. Historical growth of presidential support staff.

   A. Alternatives.

        1. It wasnot until 1857 that a President was provided with a personal secretary.

        2. Lincoln often answered his own mail.

        3. Cleveland personally answered the White House telephone.

        4. It wasnot until 1901 that the President was given Secret Service protection.

      B. Now, the White House staff alone numbers more than 500. Though the President is no longer helpless due to lack of assistance, he now is faced with so much bureaucratic assistance that he may find it difficult to control.

II. How staff can isolate a President.

      A. ThePresident’s own attitudes affect the staff: President may discourage staff members from disagreeing or giving unpleasant advice.

    B. Staff attitudes toward the President: The Staff may be overly-awed by the President and may find it difficult to present unpleasant news or advice. Also, the fear of losing access to the President may prevent staff from being completely open with the President.

III. Executive Office of the President.

   A. TheWhite House Office

        1. They are the immediate staff of the President. They have office space in West Wing of White House which puts tem in close proximity to the President.  Power is wielded by people who are in the room where the decisions are made.

        2. Staff members vie for influence by getting closer office space to Oval Office, trying to get regularly-scheduled meetings with the President

        3. Organization: two general forms:

            a. Circular method: President is the “hub,” and numerous assistants are the “spokes.”

         b. Pyramid method: Assistants report through a hierarchy, ultimately to a Chief of Staff, who then reports to the President.

         c. Analysis:

            1). The circular method allows for greater access and more information, but at the expense of efficiency. Presidents can become overworked and overwhelmed by details, losing sight of the greater picture and their broad goals.

            2). The pyramid method allows for greater efficiency, but at the expense of access and information. Presidents can be “kept in the dark”  by a “palace guard” and can thus “lose touch” with the nation.

         4. Appointments to the White House Office, generally do not require Senate consent. Therefore, officials are less subject to testifying before Congress since they have a greater degree of executive privilege protection. Presidents typically seek people who will be loyal. 

    B. 0ffice of Management and Budget: prepares the annual budget and reviews federal programs.

    C. National Security Council: coordinates foreign/military policy. Increasing importance of the National Security Adviser since the Nixon presidency.

    D. Council of Economic Advisors :a  three-person advisory group on economic policy.

IV. The Cabinet

    A. Definition: the heads of the 15 Cabinet departments and 6 others who hold “Cabinet rank” (Vice President, 0MB Director, Chief of Staff, Environmental Protection Agency, US Trade Rep, Office of National Drug Control Policy ).

    B. Each of these is appointed by the President with Senate consent.

   C. Membership:

          1. Cabinet officials are constitutionally banned from also being members of Congress.

        2. Cabinet officials are more interested in defending/enlarging their own departments than they are in meeting together to hammer out public policy. Many newly-elected Presidents speak of enlarging the Cabinet’s role, but then think better of it as time goes on.

            a. A reason for this is the divided loyalties of the Cabinet officials: are the Secretaries most loyal to the President? To the Congress? To client groups? To the employees within the departments?

            b. Another reason is that the President’s goals often conflict with Cabinet Departments goals.

        D. Presidential influence over the Cabinet can be limited:

              1. Presidents can fire the political appointees within a department.

            2. However, Presidents have little control over the civil service employees of a department. These account for over 90% of all the people who work within the Cabinet departments, and it is exceedingly difficult to fire them from their positions.

          E. Factors affecting selection of Cabinet Secretaries:

             1. Party affiliation.

            2. Interest group influence.

            3. Race.

            4. Sex.

            5. Geographical diversity.

            6. “Confirmability.”



V.  Who gets appointed to federal positions?

    A. As mentioned, the number of appointments is large, but the Percentage of appointed positions in the federal government is small. (Less than 10%).

    B. Presidents often do not know their appointees well. They depend heavily on staff recommendations.

    C. Background of appointees:

        1. Theytend to come from private industry, universities, law firms, think tanks, Congress, and state/local government.

        2. Most have had some federal experience.

        3. Some have had some federal experience just prior to appointment.

        4. Some are “in-and-outers - people who alternate between jobs in the public sector and private sector.



VI. The Vice President

    A. Only two constitutional duties:

        1. Become President or Acting President if the office of President is vacant.

        2. Preside over the Senate, voting only in case of ties.

      B. Traditionally, the Vice President is a dull, do-nothing job:

            1. “The vice presidency isn’t worth a pitcher of warm spit.” (John Nance Garner)

            2. " the most insignificant office ever conceived.” (John Adams)

            3. “I do not choose to be buried until I am really dead.” (Daniel Webster, on refusing a Vice Presidential nomination in 1848).

   C. The job of a Vice President is basically what the President says it is. It often involves unappealing work. The  Vice President is often selected not on basis of qualifications, but on basis of balancing the ticket. After he has “done his job ” the Vice President is often “put out to pasture” for dull work.

    D. The central dilemma of the Vice President: be a loyal team player who doesn’t rock the boat, yet show enough independence to avoid being written off as a “lap dog.”

    E. Importance of the office:

        1. 9/43 Presidents have not finished their terms of office.

        2. The Vice President can become Acting President if the President is disabled.

        3. In recent years, Presidents  have made more effective use of the Vice President.

          4. Many Presidents were formerly Vice Presidents. It is a steppingstone to the presidency.

 CONGRESS V. THE PRESIDENCY



I. Historical background.

    A. TheFounders’ intent was for Congress to be the dominant branch.

    B. In the 20th century, the President has generally been more dominant.

    C. Congress, however, from time to time seems to reassert itself.

  II. Sources of conflict between the President and Congress.

      A. Separation of powers and checks and balances. The Constitution is “an invitation to struggle between the President and Congress.” There is supposed to be conflict.

    B. Each represents different constituencies:

        1. Members of Congress represent state and local interests.

        2. The President, however, represents the national interest.

    C. Different times of election makes it difficult for either to gain excessive power for any great length of time.

    D. Partisanship.

        1. Since 1952, Presidents have often faced a Congress that has had a majority of the opposing party.

        2. Even when the Congress has a majority of the same party as the President, intra­party struggles are common. With the weakening of political parties, the President does not have a strong “hold” on members of his own party in Congress.

      E. President’s unity of his office conflicts with the diffusion of power among 535 members of Congress. When he was in Congress, Gerald Ford spoke of “presidential arrogance;” when he became President, he instead complained about “congressional irresponsibility.”

   F. “Two presidencies” thesis: Congress tends to be more cooperative with the President on foreign policy and national security issues, but is less cooperative on domestic and economic issues.

III. Sources of presidential influence on Congress.

    A. Use of media. Media focuses more on a single person than on 535 people. Presidents can easily go directly to the people with their case.

    B. “Mandate from the people” after winning election by a large margin.

    C. Patronage.

          1. Enables a President to carry out policy his way.   

        2. Enables a President to cultivate members of Congress by seeking their input on appointments.

    D. Chief of Party role: convincing members of Congress to act in the interests of “party unity.”

    E. Personal lobbying of members of Congress. Use of both favors and punishment for cooperative or uncooperative members.

    F. Veto, or its threat. 93% of vetoes are not overridden, so even the threat of a veto carries weight.

    G. Presence of a national emergency.


THE IMPERIAL PRESIDENCY

I. Intro.  

Throughout much of this century, the President has been the “great engine of democracy.” Seemingly, the President was supposed to exercise great power to meet his goals. In the wake of the Vietnam War and Watergate, however, Congress reasserted itself against what came to be seen as an ‘imperial presidency.

    A. Arthur Schlesinger’s The Imperial Presidency (1973) suggested that presidential power had grown excessive (“imperial”).

    B. Theodore Lowi’s response:

        1. Economic growth has necessitated a strong executive branch.

          2. Congress itself has delegated strong powers to the executive branch, especially in the area of foreign policy.

  II. Areas of abuse cited by Schlesinger.

      A. War powers.

          1. Constitutional conflict of Congress’ power to declare war vs. the President’s power as Commander in Chief.

        2. In the 18th century, Congress had more time to deliberate war issues; in the modern era, however, Presidents have argued that they need more flexibility to meet rapidly changing conditions.

        3. Presidents have sent troops without a congressional declaration of war more than 125 times. This has happened very frequently since 1945.

        4. Congress has in fact generally gone along with these operations, and has of course funded them, as well. When public opinion turns against the operations, however, Congress has often responded.

        5. One of the reasons Congress has gone along with these operations without a formal declaration of war is that such a declaration carries with it the transfer of great emergency powers to the President that Congress may not want to grant.

    B. Emergency powers: In time of war or emergency, the President assumes great powers.            

        a) suspension of habeas corpus

        b) censorship of mail

        c) control of manufacturing

        d) control of communication

        e) control of transportation

        f) declaration of martial law

   C. Use of executive agreements rather than treaties.

        1. The former does not require Senate ratification as does the latter. The former are “deals” between the President and the head of another nation.

        2. Since FDR took office, the number of executive agreements has vastly outnumbered the number of treaties. Between 1789 and 1932, a total of 1069 Executive Agreements were signed. Between 1933 and 1998, 14,719 Executive Agreements have been signed.

        3. What is particularly galling to Congress is that treaties are often on relatively trivial issues, but executive agreements are often on relatively trivial issues but Executive Agreements are often on matters of great importance.

      D. Executive privilege.

        1. Definition: the right of President to not divulge conversations between himself and his advisers.

          2. Presidents claim that if such conversations were not “privileged,” advisers would be hesitant to give straightforward advice.

        3. Critics claim that Presidents have abused this privilege by claiming it under the guise of “national security.”

        4. In U.S. v. Nixon (1974), the Supreme Court stated that Presidents are in fact entitled to executive privilege most of the time, but not in criminal cases.

    E. Impoundment.

        1. Definition- the refusal of the President to spend money that has been appropriated by Congress.

        2. In the past, this was done when there was an obvious need, such as, reducing defense spending after a war ended.

        3. Nixon, however, impounded funds for policy objectives. Some members of Congress were livid that money was not spent when it had been lawfully appropriated by legislation. Such impoundment seemed unconstitutional.

      F. Use of veto.

        1. The mere threat of a veto can often influence changes in legislation.

        2. Difficulty of mustering a 2/3 override gives the President a great advantage. More than 93% of vetoes are sustained



CONGRESS RESPONDS TO THE IMPERIAL PRESIDENCY

I. Background: The Vietnam War, Watergate, and the resignation of Nixon led to a reassertion of congressional authority in mid- 1970s.

II. War powers: passage of the War Powers Act of 1973.

    A. President can send troops overseas to an area where hostilities are imminent without a congressional war declaration only under these circumstances:

        1. Must notify Congress within 48 hours.

        2. Must withdraw the troops after 60 days (can be extended another 30 days if the safety of the troops requires it).

        3. Must consult with Congress if troops are to engage in combat.

        4. Congress can pass a resolution, not subject to presidential veto, to have the troops withdrawn.

    B. Criticisms.

        1. Unconstitutional this is  an abridgement of the President’s authority as Commander in Chief.

        2. Itties the hands of the President because it is too inflexible.

        3. Makes it easy on the enemy --just wait 60-90 days.

    C. Presidents have claimed the act to be unconstitutional, some have disregarded it, but there has been no lawsuit to determine its constitutionality.

III. Emergency powers: passage of National Emergencies Act of 1976:

    A. President must inform Congress in advance of powers to be used in emergencies.

    B. State of emergency automatically ends after 6 months.

    C. President can declare another 6 months of emergency, subject to congressional review.



IV. Impoundment: passage of Budget and Impoundment Control Act of 1974:

    A. If President impounds funds temporarily, either house can override.

    B. If President impounds funds permanently, that act is automatically voided unless both houses of Congress approve within 45 days.

    C. Establishment of Congressional Budget Office (CBO) as a check on the OMB.

    D. Congress is given three additional months to consider the President’s proposed budget.

    E. Establishment of Budget Committees in each house.



V. Confirmation of presidential appointees.

    A. Senatorial courtesy a long-established practice: before a President makes an appointment within a state, he will consult with the two senators of that state to get their approval.

    B. Much closer scrutiny is given by the Senate to recent appointments.

    C. “Rule of fitness” seems to no longer be sufficient; now, a nominee’s policy preferences are fair game for much more senatorial scrutiny than before.

    D. Long confirmation delays of years with some judicial nominees due to the belief that they are to conservative or too liberal.

VI. Legislative Veto

    A. In the past: Congress passed a law and  then the relevant executive agency issued regulations to enforce the law. Congress could then analyze those regulations and veto them if it so desired.

    B. The legislative veto was a way of forcing the bureaucracy to conform to congressional intent.

    C. In the case of INS v. Chada (1983), however, the Supreme Court declared the legislative veto to be an unconstitutional violation of separation of powers.

    D. 1996 Congressional Review Act allows Congress to repeal regulations with approval of the President.

VII. Foreign affairs.

   A. Congress has used its appropriations power to influence foreign policy.

    B. Iran-Contra hearings in the 1980s.

    C. Extensive debate over U.S. involvement in the 1991 Gulf War. Although Bush did not use the War Powers Act, he did go to Congress to get its approval for U.S. action.



    D. Although some in Congress grumbled over U.S. intervention in Kosovo in 1999, Congress funded the operation anyway

   E. Congress gave strong support to Bush’s war on terrorism


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