Transcript THE EXECUTIVE BRANCH: THE OFFICE OF PRESIDENT Topic #25 The Framers and the Presidency • Designing the office of President was one of.

THE EXECUTIVE BRANCH:
THE OFFICE OF PRESIDENT
Topic #25
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.
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.
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.
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.
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.
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 impeachment 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.
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.
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.
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.
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.
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.
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”?
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.
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?
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.
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?
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. . . .
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.
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.
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.
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 selfrestraint.
– When the Court has spoken, it has often
• spoken with a mixed voice, or
• given a mixed answer.
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.
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).