The following article is taken from Democracy Papers, edited by Melvin I. Urofsky, professor of history and public policy at Virginia Commonwealth University. Author Richard M. Pious, Adolph and Effie Ochs Professor of American Studies, is chair of the Department of Political Science, Barnard College, and a professor in the Graduate School of Arts and Sciences of Columbia University in New York City.
"The American Presidency will demand more than ringing manifestos issued from the rear of the battle. It will demand that the President place himself in the very thick of the fight; that he care passionately about the fate of the people he leads ..."
– President John F. Kennedy
The presidency has been called the most powerful office of executive leadership in the world, yet in many respects it is also one of the most circumscribed. A president wields vast formal powers, and yet because of constitutional checks and balances and legal restrictions, the incumbent usually finds, as President Harry Truman once said, that "the powers of the president mostly amount to getting people to do what they ought to do without him asking." Often it is the power to persuade, rather than the power to command, that defines the outer limits of presidential power.
CREATION OF THE PRESIDENCY
The constitutional powers of the executive branch of government are contained in Article II of the Constitution, which provides for a single president, determines the method of election (Electoral College) and provides a fixed term of four years.
Any reader of Article II of the Constitution is immediately struck by how much attention is paid to the mechanics of presidential election, and how little is paid to the powers of the president once in office. Although the president is given "The Executive Power of the United States," nothing is specified about giving orders to department heads, controlling the departments of government or removing officials from office. Although the president may make treaties by and with the advice and consent of the Senate, nothing is said about who has the power of abrogation. Although the president is named commander in chief, there is nothing further about his power to command the military, or about his relationships with the uniformed officer corps. Although the president may call Congress into special session, has the duty to inform Congress about the state of the union and recommend measures to it, and may veto its bills, there is nothing said about his powers to issue regulations with the force of law.
These omissions were not unintentional. The framers of the Constitution were practical men of affairs, well seasoned in governing the Colonies and states, and many of them had extensive military and diplomatic experience. They crafted a short and ambiguous article dealing with presidential power in order to get the Constitution ratified by state legislatures that were suspicious of executive power. They did not fully define executive power, nor did they completely confine it. Instead, they left many issues for later generations to settle.
The result was constitutional language that could be interpreted in two ways. Executive power either could be limited, confined, and checked and balanced, or it could be an instrument to build a strong economy directed by the central government, and a bulwark against the dangers posed by foreign powers interfering in the affairs of the new nation.
NOMINATION AND ELECTION
The way presidents are nominated and elected also has much to do with the ambiguous nature of their power. Initially, the framers assumed the Electoral College, that is, a body created every four years to pick a president, with representatives from all states, dominated by large states, would "nominate" five candidates, and the House of Representatives would then make the final choice. Instead, by the early 1800s, political parties were able to amass Electoral College majorities for their candidates, thus creating the current party-dominated system. By the 1830s, state legislatures had given up the power of choosing electors to the people in the states, putting the voting for president on a popular foundation.
The current nominating system within the major parties involves contests in each state (known as primaries or caucuses) to choose delegates to a national convention, which, in turn, chooses the party nominee. The successful candidates demonstrate skills in fundraising, producing radio and television commercials and managing their media images to impress a mass electorate. The need for funds and a media organization narrows down the field to a small group of career politicians, most of whom are either state governors, senators or vice presidents.
PARTIAL SEPARATION OF POWERS
The framers believed that there should be only "partial" rather than "complete" separation of powers among branches of the federal government. Drawing from the political theories of the Frenchman Baron de Montesquieu and the Englishman John Locke, the framers distinguished between executive, legislative, and judicial powers, and created three separate institutions to exercise these powers, but in order to maintain an equilibrium among these institutions, they decided to permit some overlap of functions.
Each institution not only would exercise its primary functions, but also would have a share in functions of the other institutions. Thus, the president would have a pardon power (a judicial function) and could recommend measures to the legislature (a legislative function). The Senate would have a share in appointments (an executive function), and Congress had a removal power through impeachment trials (a judicial function). Courts could make decisions with general application (a legislative function) and could issue orders (through writs of mandamus) requiring that executive officials take specified actions.
The impact of partial separation of powers is felt in many areas of national government. The president gains a greater share in the work of other institutions, but at the same time matters that might be expected to be confided in the executive (such as military preparedness, diplomacy, domestic policymaking, and budgeting) are shared with the legislature. The result is that the Constitution is less a blueprint of government, neatly dividing powers, than it is (in the words of Princeton political scientist Edward Corwin) "an invitation to struggle" over the privilege of directing American policymaking.
CHECKS AND BALANCES
Thus, the presidency functions within a system of "checks and balances," designed to allow each national institution to limit the power of the others. The president may veto acts of Congress, either on constitutional or policy grounds, and his veto cannot be overturned without a two-thirds vote to do so in the House and Senate. This not only gives the president a check on Congress, but it enables him in advance to "balance" legislative interests (particularly if Congress is controlled by the opposition party) with his own priorities, since he can threaten in advance to veto a bill being considered by the legislature. Congress then may have to take his concerns into consideration before the measure is passed, in order to avoid the veto being exercised. The president exerts his checks on the federal courts through his power to appoint new federal judges and Supreme Court justices: the cumulative effect of this power of appointment is to turn much of the federal bench toward his own interpretations of constitutional and statutory law, as justices he appoints become more numerous.
But checks and balances limit presidential prerogatives as well. A presidential executive order, for example, must be in conformity with statutory law or it will not be enforced by federal courts. Presidential appointments to high-level positions must be consented to by the Senate by majority vote. The presidential power to make treaties is subject to the "advice and consent" of two-thirds of the Senate. Any presidential executive order or executive agreement (with another nation) is subject to the power of judicial review, which is the power of the federal court to declare the order null and void on the grounds that it is unconstitutional.
IMPEACHMENT AND REMOVAL
The most important checks on the president involve the "auxiliary precautions" of impeachment and removal for "high crimes and misdemeanors." This is a term of art taken from British practice, based on the Commentaries on the Law of England of Lord Blackstone. According to Blackstone, a "high crime" meant a crime against the state, such as treason, while a "high misdemeanor" referred to significant corruption and maladministration. The American constitutional system does not contemplate removal for losing the confidence of the legislature (such as is implied in losing a vote of confidence in a parliamentary system).
A president is impeached (equivalent to being indicted) by a majority vote of the House of Representatives. Thereafter, he is tried in the Senate, with the chief justice of the United States presiding. Punishment extends only to removal from office, though a president may be indicted and tried in a court of law whether or not he is convicted or acquitted in his impeachment.
The framers assumed that by making impeachment difficult it would rarely be utilized, and they were right. There have been only three presidents in American history who faced impeachment: Andrew Johnson was acquitted by one vote in 1868 for violating the Tenure of Office Act (which purported to prevent the president from firing a Cabinet secretary until the Senate consented to a successor); Richard Nixon resigned in 1974 after the House Judiciary Committee recommended his impeachment for covering up crimes connected to the Watergate burglaries; Bill Clinton was acquitted by the Senate in 1999 after being impeached by the House of Representatives for perjury and obstruction of justice in his testimony in a civil court suit.
Although presidential power seems circumscribed by constitutional limitations and the difficulties of working with coordinate institutions, presidents have a way around these difficulties. At times, they claim vast prerogative powers, based on their own reading of the Constitution. Armed with these powers, they unilaterally take actions to resolve serious policy disputes or to manage crises, and then justify their actions to Congress and the American people thereafter, defending both the legitimacy of acting (their right to exercise power) and the authority of their actions (the wisdom of their policies).
From the beginning of the nation, prerogative power has settled significant disputes. George Washington unilaterally declared neutrality in the British-French conflict of the early 1790s, although nothing in the Constitution explicitly gave him the power to do so. Thomas Jefferson purchased the Louisiana Territory from France in 1803, although nothing in the Constitution specified a power of the national government to acquire territory. Andrew Jackson asserted the power to remove members of his Cabinet, instituting presidential supremacy within the executive departments, although the Constitution is silent on a removal power. Abraham Lincoln exerted so much power his presidency was later referred to by Cornell political scientist Clinton Rossiter as a "constitutional dictatorship": constitutional in the sense that midterm elections and presidential elections were held in the midst of a civil war; and a dictatorship in the sense that Lincoln sometimes went beyond the bounds of the laws and the written Constitution at that time of national crisis.
Franklin Roosevelt also relied on prerogative powers before the United States entered World War II. He concluded an executive agreement with Great Britain to exchange overaged destroyers for naval bases, a maneuver that significantly helped the British convoys plying the North Atlantic with war material. The executive agreement, unlike a treaty, did not require the approval of two-thirds of the Senate, which is why Roosevelt used this form of international agreement on his own prerogative.
“FRONTLASH” AND “BACKLASH”
When a president uses prerogative power and succeeds, there is a "frontlash" effect: his party and the American people unite behind him; the opposition often splits and it loses confidence; the initiative is often ratified and legitimized by subsequent legislative or judicial actions. In contrast, a president whose actions are checked by the courts -- as were President Truman's seizure of the steel mills during the Korean War, and President Nixon's impounding of funds for domestic programs -- faces a "backlash" effect, in which Congress is likely to pass legislation making it more difficult for a president to use prerogative power. Thus, Nixon's setbacks in the courts were followed by passage of a law that required congressional approval in order for a president to defer or rescind appropriations passed by Congress.
The prosecution of the war in Vietnam by Presidents Lyndon Johnson and Nixon resulted in a backlash against presidential war powers, and the passage of the War Powers Act of 1973, in which Congress gave itself the power under certain circumstances to require a president to withdraw forces from hostilities. Federal courts, however, have declined to issue orders requiring presidents to withdraw forces from hostilities, although there have been several lawsuits brought against Presidents Reagan, Bush and Clinton by members of Congress. The courts have ruled instead that until Congress as a whole brings a suit, the cases brought by individual members must be dismissed.
DOMESTIC POLICY LEADERSHIP
Presidents usually do not come into office with great mandates for change, except during difficult economic times or in military crises. Presidents operate on a four-year electoral cycle. In thinking about their re-election prospects, they are likely to call for measures that require sacrifice early in their term, so that they can offer "the goods" to voters in the two years leading up to their re-election. Thus if austerity measures are needed, they propose them in their first years. In contrast, members of Congress are chosen on either a two- or six-year cycle: all members of the House and one-third of the Senate will be up for re-election two years into a presidential term. Thus the calls for austerity and sacrifice made by the president may put members of his own party in danger in the midterm elections.
The president's party almost always loses seats in the midterm elections. Typically, the party will lose up to 20 seats in the second year of a presidential term, and up to 40 seats in the sixth year. There is little a president can do to counter these trends. If he does well in office, it rarely translates into support for members of his party in midterm contests; if he does badly, however, it does translate into defections by his party's voters over to the opposition. The more vulnerable members of the president's party, therefore, may see him as a liability to their own re-election chances.
Presidents usually obtain much of what they want in their first year in office (the "honeymoon" period), though paradoxically that year is a time when they have the least experience and knowledge about what it is they ought to be doing. As they accumulate experience, they have a better idea of how to achieve their goals, but they find, ironically, that they have fewer supporters in Congress to vote for their programs, and their success rates with Congress usually diminishes as their term goes on. Near the end of their term, especially if Congress is controlled by the opposition party, presidents may find their budget proposals, as well as their nominations for high office and the federal judiciary, "dead on arrival" on Capitol Hill.
DIPLOMATIC AND NATIONAL SECURITY POLICY LEADERSHIP
Since the start of World War II, presidents have benefited from several trends that increased their power to direct foreign affairs and weakened the power of Congress either to influence or obstruct their policies. Franklin Roosevelt and his successors controlled intelligence information vital in dealing with Cold War adversaries, and they often convinced members of Congress that they should be given the benefit of the doubt in national security affairs. Presidents used the prerogative powers they claimed under the Constitution, as well as vast delegated powers granted by Congress to them during and after World War II.
The American experience with presidential power may have some use for other nations. To a large extent presidential power is "the power to persuade" Congress and the American people to support significant changes in public policy, and the system works in a quasi-parliamentary manner. But the presidency is also an instrument of prerogative power, which occurs when an incumbent who has only limited party and public support nevertheless manages to utilize his own constitutional authority for a limited time to resolve a national emergency. Such was the case with Jackson in 1832 when he prevented South Carolina from flouting federal customs laws; it was the case with Lincoln in 1861 when he enforced federal law against secessionist states, thus precipitating the Civil War; and it was the case with Franklin Roosevelt in 1940 and 1941, when he cemented an alliance with the British and the Russians against the Axis powers.
These experiences demonstrate the utility of the ambiguity of the American constitutional language -- ambiguity that allows for the exercise of vast powers with unspecified limits to meet the nature of an emergency without being confined by restrictions that would hobble the executive and prevent decisive action. But the fundamental questions of executive power in a democracy remain: How can the people prevent an executive armed with great prerogative power from becoming a dictator? How can the society redress abuses of executive power?
The American idea is to safeguard limited, constitutional and democratic government through the following principles: partial separation of powers, so that other institutions can participate in routine policymaking; checks and balances, so that no power can be exercised for long without legislative and judicial review of its legitimacy; federalism, so that if national institutions fail, the states can act; and democracy, so that the president and his party remain accountable to the electorate at fixed intervals. In a true parliamentary system, deadlock and policy paralysis can be overcome through either a vote of no confidence or the calling of new elections. In the American system, based on a fixed presidential term and fixed dates for elections, the dangers of gridlock and stalemate are ever-present, but can be ameliorated either by the successful exercise of prerogative power, or by consensus-building through presidential leadership of Congress and public opinion.
Above all, the presidency functions within a political culture that simultaneously defers to the presidential office but is highly skeptical of the executive power it wields. Under the system of separation of powers, the presidency does not embody the nation's sovereignty. Presidents are not absolute monarchs and they are not above the law: The courts have held that no president is immune from a private lawsuit while in office, and incumbents must provide evidence to the courts when required to do so by the judges, and are subject to judicial process. While we have statutes that allow the Secret Service to investigate and arrest people who make direct threats against the president, we have no laws making it a crime to show disrespect to the office or the occupant of it, and no laws prevent the press or opposition parties from directly criticizing the president or members of his administration.
The American political culture of high respect for the office of the presidency, but healthy skepticism about the exercise of power within it, is perhaps the most significant factor in keeping the presidency within the bounds of constitutional governance.