Presidential Powers

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Presidential Powers

The executive authority given to the president of the United States by Article II of the Constitution to carry out the duties of the office.

Article II, Section 1, of the Constitution provides that the "executive power shall be vested in a President of the United States," making the president the head of the Executive Branch of the federal government. Sections 2 and 3 enumerate specific powers granted to the president, which include the authority to appoint judges, ambassadors, and other high-ranking government officials; Veto legislation; call Congress into special session; grant pardons; issue proclamations and orders; administer the law; and serve as commander in chief of the armed forces.

Article II gives the president authority to recommend measures for congressional consideration. Pursuant to this authority, presidents submit budgets, propose bills, and recommend other action to be taken by Congress.

Veto Power

Under Article I, Section 7, of the Constitution, "every bill" and "every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary" must be presented to the president for approval. This "presentment" requirement does not apply to constitutional amendments, procedural rules of each house, and several other types of legislative action.

Under the Constitution, the president has ten days (not counting Sundays) in which to consider legislation presented for approval. The president has three options: sign the bill, making it law; veto the bill; or take no action on the bill during the ten-day period. If the president vetoes the bill, it can be overridden by a two-thirds majority of both houses of Congress. If the president takes no action, the bill automatically becomes law after ten days. However, if Congress adjourns before the ten days have expired and the president has not signed the bill, it is said to have been subjected to the pocket veto, which differs from a regular veto in that the pocket veto cannot be overridden by Congress.

In 1996, Congress gave the president the authority to select particular items from appropriation bills and individually veto them. The federal line-item veto authority (2 U.S.C.A. §§ 691 & 692) gave the president the ability to impose cuts on the Federal Budget without vetoing a bill in its entirety. The line-item veto, like a regular veto, could be overridden by a two-thirds majority vote of both houses.

This law was immediately challenged as a violation of Separation of Powers by five members of Congress. They argued that line item veto disrupted the historic balance of powers between the legislative and executive branches and that it violated Article I, Section 7. The Supreme Court, in Raines v. Byrd, 521 U.S. 811, 122 S.Ct. 1700, 152 L.Ed.2d 771 (12002), refused to hear the case, dismissing it for lack of jurisdiction. The Court held that the legislators lacked legal standing to bring the lawsuit because they could show no personal injury from the new power.

The constitutionality of the line-item veto act was finally adjudicated in Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998). The Supreme Court ruled that the law was unconstitutional because it violated the Constitution's Presentment Clause. Under the Presentment Clause (Article I, Section 7), after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the president, who "shall sign it" if he approves it, but "return it," ("veto" it) if he does not. Nothing in this clause authorized the president to amend or repeal a bill.

The veto gives the president enormous power to influence the writing of legislation. By threatening a veto before legislation is passed, the president can force Congress to compromise and pass amendments it would otherwise find unacceptable.

Executive Orders

The president's executive powers also include the authority to issue proclamations and executive orders. A proclamation is the president's official announcement that the president is taking a particular action. Such an announcement is not the same as an Executive Order, which has the force and effect of law by carrying out a provision of the Constitution, a federal statute, or a treaty. The Constitution does not expressly give the president the power to promulgate executive orders. Instead, this power has been inferred from the president's obligation to faithfully execute the laws. Proclamations and executive orders are published in the Federal Register to notify the country of presidential actions.

Powers of Appointment

The president has the power to appoint ambassadors, cabinet officers, and federal judges, subject to confirmation by a majority vote of the Senate. Upper-level executive branch officials, who numbered more than 2,500 in 2002, are appointed solely at the discretion of the president or department head without Senate review. The power to appoint federal judges gives a president the opportunity to place on the federal bench for lifelong terms persons who agree with the president's views on law and the role of the judicial system. A president is limited to serving eight years. A federal judge may serve for decades.

Pardon Power

The president is given the power under the Constitution to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The president may grant a full pardon to a person accused or convicted of a federal crime, releasing the person from any punishment and restoring her or his Civil Rights. The president may also issue conditional pardons that forgive the convicted person in part, reduce a penalty a specified number of years, or alter a penalty with conditions.

A pardon is generally a private transaction between the president and an individual. However, in 1977, President jimmy carter granted an Amnesty that was, in effect, a blanket pardon to those who were either deserters or draft evaders during the Vietnam War.

Power of Impoundment

Presidential Impoundment is the refusal of the chief executive to expend funds appropriated by Congress. Thomas Jefferson was the first president to impound funds, and many other presidents have followed suit. Congress has granted the president the authority not to spend funds if it has appropriated more funds than necessary to reach its goals. However, the president does not have a limitless impoundment power. The U.S. Supreme Court, in Train v. City of New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1 (1975), ruled that President richard m. nixon could not order the impoundment of substantial amounts of environmental protection funds for a program he vetoed, which had been overridden by Congress. The president cannot frustrate the will of Congress by killing a program through impoundment.

Foreign Policy Powers

The president or his designated representative, such as the Secretary of State, has the exclusive authority to communicate with other nations, recognize foreign governments, receive ambassadors, and make executive agreements. Throughout U.S. history, Congress and the courts have granted the president great deference in conducting foreign policy. This deference is based, in part, on the need for one person, rather than 535 members of Congress, to represent and speak for a national constituency.

These powers were illustrated in the aftermath of the september 11, 2001, terrorist attacks on New York City and Washington, D.C. President george w. bush warned the Taliban government of Afghanistan to surrender Osama bin Laden and other terrorists or face the possibility of war. In the months leading up to the March 2003 invasion of Iraq, President Bush, Secretary of State Colin Powell, and other representatives lobbied the United Nations for support of the U.S. position on Iraq.

In addition to the authority to recognize foreign governments, the president is empowered by Article II to make treaties with foreign nations, subject to the consent of the Senate. A treaty is an agreement between two or more nations containing promises to behave in specified ways.

Executive agreements are international compacts that the president makes with foreign nations without the approval of the Senate. They do not have the same legal status as treaties unless they are subsequently ratified by the Senate. The Constitution does not expressly give the president the power to make executive agreements. However, this power has been inferred from the president's general constitutional authority over foreign affairs. At one time, executive agreements involved minor matters, such as postal relations and the use of radio frequencies. Since the 1930s, however, presidents have negotiated important foreign policy issues through these agreements rather than through treaties. The Supreme Court has recognized that an executive agreement is legally equivalent to a treaty and therefore the supreme law of the land. Executive agreements enable the president to achieve results while avoiding the uncertainty of treaty ratification.

Presidential War Powers

An integral part of the president's foreign policy role is the enormous power of the U.S. armed forces, over which the Constitution makes the president commander in chief. The president may threaten a foreign nation with force or actually conduct military actions to protect U.S. interests, aid U.S. allies, and maintain national security.

Although the president is commander-in-chief, Article I of the Constitution gives Congress the power to declare war. Despite this apparent constitutional impediment, presidents since Thomas Jefferson have dispatched troops to combat situations without the prior approval of Congress. The Supreme Court held in the Prize cases, 67 U.S. 635, 17 L. Ed. 459; 70 U.S. 451, 18 L. Ed. 197; 70 U.S. 514, 18 L. Ed. 200; 70 U.S. 559, 18 L. Ed. 220 (1863), that the president has the authority to resist force without the need for special legislative action.

In times of crisis, the president has the power to commit U.S. forces, but the Vietnam War led Congress to place limits on the presidential war power. The War Powers Resolution of 1973 (50 U.S.C.A. §§ 1541 et seq.) restricts the president's power to mobilize the military during undeclared war. It requires the president to make a full report to Congress when sending troops into foreign areas, limits the duration of troop commitment without congressional authorization, and provides a veto mechanism that allows Congress to force a recall of troops at any time.

Following the September 11 terrorist attacks on the United States, Congress passed a resolution authorizing the president to use force to fight a War on Terrorism. President George W. Bush issued military orders in October and November 2001 that mobilized National Guard and Army Reserve units and directed the detention of enemy combatants by the military. In a controversial move, President Bush authorized military tribunals to try suspected terrorists. After the U.S. invasion of Afghanistan, many suspected terrorists were captured and moved to military prisons for indefinite terms of detention. The invasion of Iraq by U.S. and British forces in March 2003 was authorized by Congress in the fall of 2002, again giving the president as commander-in-chief broad authority to conduct a military campaign.

The president also has broad powers over domestic policy during wartime. President Abraham Lincoln issued an order to military commanders suspending Habeas Corpus during the Civil War, which allowed the military to arrest and detain persons without trial for an indefinite time. Congress later passed a law suspending habeas corpus, but after the Civil War, the Supreme Court, in ex parte milligan, 71 U.S. 2, 18 L. Ed. 281 (1866), condemned Lincoln's directive establishing military jurisdiction over civilians outside the immediate war zone.

During the early days of U.S. involvement in World War II, President franklin d. roosevelt issued orders authorizing the establishment of "military areas" from which dangerous persons could be expelled or excluded. This order was used to designate the West Coast a military area and to remove and imprison 120,000 Japanese Americans in "relocation centers" for the duration of the war. The Supreme Court upheld the relocation order in korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), finding that the government had a compelling national security interest during a time of war to take such extreme measures.

Following the September 11 attacks on the United States, Congress passed the usa patriot act, which gives the president increased powers to wiretap suspected terrorists without judicial supervision as well as the power to indefinitely detain Aliens who are suspected of Terrorism. U.S. citizens who have been held as enemy combatants in military prisons without the right to consult with an attorney or have a criminal trial have challenged the president's authority. In Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), the Fourth Circuit Court of Appeals ruled that the courts must defer to the president when dealing with issues of national security. Therefore, the president could order the indefinite detention of enemy combatants.

Further readings

Neustadt, Richard E. 1990. Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan. New York: Free Press.

Parmet, Herbert S. 2002. Presidential Power from the New Deal to the New Right. Malabar, Fla.: Krieger.

Rozell, Mark. J., ed. 2002. Executive Privilege: Presidential Power, Secrecy, and Accountability. 2d ed. Lawrence: Univ. Press of Kansas.

Shapiro, Robert Y., Martha Joynt Kumar, and Lawrence R. Jacobs, eds. 2000. Presidential Power. New York: Columbia Univ. Press.


Congress of the United States; Constitution of the United States; Executive Privilege; Japanese American Evacuation Cases; Separation of Powers.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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