Learning Objectives After covering the topic the presidency, students should understand:
1. The origins and executive nature of the presidency and the roles played by presidents.
2. The sources of presidential power. 3. The organization of both the White House and the larger Executive
Branch. 4. The growth of presidential power and how that power has changed
over the past century.
Abstract1 The framers envisioned a presidency that left them concerned about
what they termed ‘‘energy in the executive.’’ In other words, they thought the presidency would not be powerful enough. Contemporary politicians and scholars present a very different view. They often debate whether or not the presidency has in fact become too powerful. Related to this shift in the views about power is a shift in what is perceived to be the main sources of presidential power. The framers created an of ce empowered by, and limited by, the Constitution. However, modern analysts see the of ce empowered by a very different and extra constitutional source the public.
Introduction The Second Branch?
The president is the head of the Executive Branch. By executive, we mean that it is the branch designed to carry out (or execute) policy. The framers clearly treated the executive as a secondary branch. It is discussed in Article II of the Constitution. Article I covers the Legislative Branch largely because they felt it would be the most powerful branch. It seems more the opposite today. How can this be so?
1 Portions of this chapter were originally included in Cavalli, Carl D. 2000. The Presidency. Lesson 10 in POLS 1101: American Government. University System of Georgia eCore™
asics Presidential Roles
It is best to begin exploring this question by reviewing the expectations placed on presidents. That is, what roles do they play in our system? Generally, they play two roles: Chief of State and the head of government.
Chief of State One role the president plays is that of chief of state, or national symbol.
The presidency is the only of ce in this country elected by the entire nation. Presidents have come to embody their symbolic role in many ways.
When Barak Obama deliverd his second inaugural address on January 21, 2013, one of the rst things he said was We af rm the promise of our democracy. Is we his family? The White House? The federal government? No. His use of the term is a reference to the nation.
Presidents often claim to be a voice for the American people (e.g., see Barger, 1978, Teten, 2007). Whether this is true or not, their priorities do become our priorities—when a president suggests the nation focus on an issue (like civil rights or health care), we do engage in debate. We may not always agree with the president, but we do wind up discussing these issues as a nation.
In addition, presidential involvement in international affairs is the equivalent of American involvement. When the president signs an international agreement, America is committed to that agreement. When the president receives another nation’s ambassador, it is America recognizing the existence of that country.
Consider the following private presidential conversations that were recorded on Dictabelts in the White House. Is it just the president talking, or is it America talking?
ollowing the space ight of ajor Gordon Cooper on ay 1 , 1963, President John Kennedy called him and said, “We’re very proud of you, Major” (Miller Center, 2010a, emphasis added). On the birthday of famed poet Carl Sandburg, January 6, 1964, President Lyndon Johnson called Sandburg and said he wanted “to tell you how fortunate America was to have you with us” (Miller Center, 2010b, emphasis added).
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These conversations were not intended for public consumption, and so they provide us with good evidence that presidents often speak for all of America even in private moments. Of course, a glance at most public presidential addresses reveals the same character. You can see this by perusing the White House video (http://www.whitehouse.gov/video) and brie ng (http://www.whitehouse.gov/brie ng room) websites.
Head of Government The other role of the president is that of Chief Executive or chief
operating of cer of the United States. In this role, the president is recognized as the person atop the federal government’s policy-making team.
In a sense, the president as the head of government is in charge of the day-to-day operations of the United States government. The president is, of course, the person charged with carrying out the laws of the land (as noted earlier). The president is also charged with evaluating the laws and recommending changes.
Most of the legislative proposals that Congress works on actually originate in the Executive Branch. The executive departments and agencies charged with carrying out the laws will also evaluate those laws: Are the laws having their intended effect? Are any changes needed? If so, what? All of this information eventually ows back up to the president, who will in a very real sense act as chief legislator in addition to being the chief executive.
Shortly after speaking to Carl Sandburg, President Johnson also called Minnesota Senator Eugene McCarthy regarding civil rights legislation in the Senate. He said, “I want you to pull together those other Democrats and make them attend the meetings, make them keep their mouths shut, make them vote down the amendments, and get me a bill out on that oor ” (Miller Center, 2010c). Though seated in the White House, Johnson is clearly acting as a legislator during this phone call.
Chief Legislator entails more than just evaluating and recommending laws. The president also has the constitutional power to veto legislation. Congressional legislation must be submitted to the president for approval. The president can either sign it into law or veto it. If the president vetoes a bill, it is dead unless two-thirds of each house of Congress votes to override the veto (see Chapter 7). This action would enact the bill into law without presidential approval. It is hard enough to get suf cient votes to pass a bill in the rst place, so you can imagine the dif culty of trying to
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get two-thirds of each house to override a veto. The consequence is that, generally, nothing becomes law without the president’s approval!2
These roles are a lot to invest in one person. How does this compare to other nations? Who plays these roles in other countries? Compare the United States to the United Kingdom. In the United Kingdom, these roles are separated. The Queen acts as the ceremonial Chief of State, and the Prime Minister acts as the day-to-day head of government. In the United States, we combine them into one person, which would seem to make our presidents very powerful people. This statement is true, but the framers designed a system where one powerful executive does not go unchecked. We tether our presidents (that is, we limit their independence). They are tethered to Congress and the courts through checks and balances (see Chapter 2), and they are tethered to the public through elections (and politically through measures of public approval). In the United Kingdom, the Prime Minister is tethered only to the majority party in the House of Commons, and the Queen is not tethered to anyone.
In some instances, we can actually see a combination of these two roles. Our recognition of presidents as national leaders leads us to allow them substantive powers.
Executive Orders As the head of government, the president supervises the Executive
Branch. This responsibility includes deciding how to execute the laws of the land.
Bolstered by the role of Chief of State, the president has a lot of authority. That authority is exercised through the issuance of executive orders. If, for example, the Executive Branch is charged with carrying out various programs called for by legislation, the president may issue executive orders directing whom to hire and how to disburse the appropriate funding. While divorced from formal congressional authorization, these orders carry the same of cial weight as laws and at times may be used by presidents in place of legislation in the face of an uncooperative Congress.
The effects of this kind of order may have profound consequences, not only for the Executive Branch, not only for the program involved, but also for the individuals hired and for the society at large. 2 There is a third possibility—the president may let a bill become law without signing it by letting it sit for 10 days. This option essentially says, “I don’t like this bill, but I don’t want to ght it.” It is not a commonly exercised option.
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The situation was true for one of the most famous executive orders in the post-World War II era: Executive Order #10952. With the order, President John F. Kennedy created the Equal Employment Opportunity Commission in 1961. It was charged with insuring that, in all contracts using federal funds, the contractors must take af rmative action to ensure that applicants are employed, and employees are treated fairly during employment, without regard to race, creed, color or national origin.
Executive Order #10952 marked the rst time the term af rmative action’’ was used by the federal government, putting its weight behind the cause of civil rights with consequences (and controversy) still felt today.
Executive Agreements An executive agreement is an agreement between the President of the
United States and the head of another country. While the president has the constitutional power to negotiate treaties with other countries, such treaties require the approval of two-thirds of the Senate. Executive agreements, on the other hand, do not require any congressional approval (although any money or changes in the law that may be required to ful ll an agreement must be approved by Congress through the normal legislative process), yet they are recognized as having the same force of law as treaties. This recognition has been granted—and upheld by the courts—precisely because of the president’s standing as Chief of State. In other words, the president has the power to speak for the country and to commit its resources in an agreement with other nations. For example, despite an of cial policy of neutrality, President Franklin Roosevelt took it upon himself to reach an agreement with the United Kingdom to exchange U.S. warships for British bases during the opening months of World War II. At the time, there was no speci c legal or constitutional provision, empowering the president to do so. He justi ed his actions on the commander-in-chief and executive powers found in the Constitution, as well as a minor law permitting the president to dispose of obsolete military equipment. Congress eventually acquiesced to this by passing the Lend Lease Act of 1941, which permitted the president to lend defense articles’’ to any government whose defense the president judges vital to the defense of the United States.’’
Executive Privilege Executive privilege is the claim by presidents of their right to refuse
to hand over information requested by Congress. The logic is that the
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constitutional provision for separation of powers means that the Congress has no right to force the president to turn over information to them. It is most often used with the rationale of maintaining secrecy for purposes of national security.
In his battle with Congress over materials related to the Watergate scandal, President Richard Nixon tried to exert an absolute claim of executive privilege. In the case of United States v. Nixon (1974), the Supreme Court ruled that, while presidents do have a right under the separation of powers to claim executive privilege, the right is not absolute.
In 1998, Federal Judge Norma Holloway Johnson ruled that executive privilege does not cover presidential conversations with White House aides absent any national security claims. In so ruling, she compelled reluctant presidential advisers to testify in the investigation into President Clinton’s affair with Monica Lewinsky.
More recently, the administration of President George W. Bush invoked claims of executive privilege on a number of occasions, including its refusal to disclose documents relating ice President Dick Cheney’s meetings with energy company executives during the administration’s development of energy policy proposals and its refusal to allow White House personnel to testify before Congress during the investigation into the ring of U.S. attorneys (e.g., see Holding, 2007).
hat a es a resident o erfu In one of the most famous explorations of presidential power, Richard
Neustadt (1990) claims that the constitutional powers of the president amount to no more than the powers of a clerk.
Remember, the framers designed the presidency as an of ce which merely carries out the laws passed by Congress. Yet, modern presidents are often referred to as the most powerful person on Earth. During the Cold War, presidents were referred to as the leaders of the free world.’’ This description sounds like a lot more than just a clerk. How can it be?
If Neustadt is correct, most presidential power does not come directly from the Constitution. It must come from somewhere else. An exploration of presidents’ constitutional and legal sources of power, along with their more political sources, may help clarify this confusion.
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Constitutional and Legal Power Sources These sources of power stem from either the Constitution itself or from
The ice President The vice presidency is established in both Articles I and II of the
Constitution. Our rst vice president, John Adams, said, I am nothing. I may be everything.’’ The rst part of Adam’s lament is based on the lack of formal duties for vice presidents. This case was especially true in Adams’s day, because vice presidents were then the second-place nishers in the presidential elections—which meant they were the opposition as far as the new president was concerned. So, vice presidents were then largely isolated from their presidents. The 12th Amendment changed this situation by providing for the separate election of vice presidents, which grew into a system where vice presidents are largely elected with their own party’s presidential nominee.
The second part of Adams’s quote, I may be everything’’ is based on the vice president’s position as rst in the line of presidential succession. Should a president die, resign, or become incapacitated, it is the vice president who takes over as president. It has happened eight times in our nation’s history (eleven times, if you count the three times that recent vice presidents temporarily took charge as their presidents underwent medical procedures).
Today, vice presidents are on much friendlier terms with their presidents. They often play the part of trusted presidential advisers. More and more, vice presidents are charged with leading various presidential initiatives. For example, George W. Bush’s vice president, Dick Cheney, acted not only as a trusted advisor, but also led many of the administration’s policy initiatives, including those regarding energy and anti-terrorism policy. Cheney has been described by many as the most powerful vice president ever (Walsh, 2003, Kuttner, 2004), though recently some have speculated that his successor under President Obama, ice President Joe Biden may be as or more powerful (Hirsch, 2012, Rothkopf, 2013, McDuffee, 2013). Biden is also a trusted advisor, especially in the area of foreign policy. He has also lead many of the Obama’s administration’s initiatives, especially those involving the budget and gun control.
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As noted in Chapter 7, vice presidents are also formally charged with presiding over Senate oor debate, but since that debate is essentially unregulated, this duty is without true power. Oftentimes, the vice president is mainly an electoral resource—someone to help a presidential candidate pull in votes in an area of the country where that person might be weak.
The White House Staff and The Executive Of ce of the Presidency Positions and organizations in these two entities may be based on direct
presidential creation or on congressional statutes (or some combination thereof). They act as personal/political and policy advisers to the president, respectively.
The White House Staff are the people who most immediately surround the president. They act as personal advisers. These people advise the president on what to say, when to say it, what to do, who to meet, and when. The president’s Chief of Staff coordinates this group, which includes people like speech writers, press and appointment secretaries, and political advisers. Members of Executive Of ce of the residenc (or E.O.P.) act as policy advisers to the president. They advise the president on what policies to pursue and propose and assist with management of the federal bureaucracy. This group includes economic advisers, legislative advisers, and domestic and foreign policy advisers, among others.
The president appoints members of the White House Staff and E.O.P. They do not require Senate con rmation because they are advisers without any true operational responsibility. In addition, they serve at the president’s pleasure.’’ This phrase means they serve only as long as the president wants them. The president may re them at any time without cause.
Because of their advisory role, presidents often place some of their closest acquaintances in these positions. New presidents generally replace all of the previous occupants with people they want and trust. Information on White House of ces and agencies may be found on the White House website (see: http://www.whitehouse.gov/administration).
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Cabinet Departments and Executive Agencies These are the organizations created by congressional statutes. They
actually carry out policy. In this capacity, they both assist the president in ful lling the roles of the chief executive, and they also provide the president with advice on future policies to pursue. These departments and agencies are grouped according to substantive topics, much like the committee system in Congress. Examples include the departments of Agriculture, Commerce, Defense, and Homeland Security, The Small Business Administration, and NASA (see Chapter 9).
The president nominates the heads of these organizations, but unlike the advisers, they require Senate con rmation. The reason for this distinction is that, unlike the advisers, these organizations have operational responsibilities (in other words, unlike advisers, they actually do something). They carry out the will of Congress (in the form of laws), so Congress has a say as to who heads these departments and agencies.
Like the advisers, department and agency heads serve at the president’s pleasure. Generally, incoming presidents will replace most or all department and agency heads with their own people. Everyone below the few top levels in these organizations are neither appointed nor red by the president. They are hired under provisions of the Civil Service (see Chapter 9) based on merit and cannot be red except for cause. As such, lower level department and agency employees often serve in their positions as careers which cross two or more administrations. Information on cabinet departments and executive agencies may be found at the USA.gov website (see: http://www.usa.gov/Agencies/Federal/Executive.shtml).
It is clear from all this information that cabinet departments and executive agencies are more independent and removed from the president than are the White House Staff and E.O.P.
WHO DO YOU TRUST?: Presidents have many sources of advice. Members of the White House Staff and the E.O.P. are hired as advisors, but cabinet secretaries and agency heads are also in a good position to provide advice—especially since they are the ones actually out there carrying out laws and policies.
Since members of the White House Staff and the E.O.P. depend on the president for their jobs, they sometimes become yes people’’ and shield the president from bad news. Understandably, this characteristic makes
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them potentially poor advisors3. The Cabinet may actually be in a better position to give advice. After all, they know if policies are working or not because they are running them! But will presidents listen to them?
Cabinet departments and executive agencies are less dependent on the president for their jobs (since the heads of these organizations require congressional con rmation and everyone else is a civil service hire). As such, they are much more likely to say no to the president when needed. Is there potential here for a president to become isolated in a White House Fortress’’ favoring those White House aides who are least likely to be honest over the cabinet and executive of cers who have real-world experience? Is there any evidence that recent presidents favored their White House and E.O.P. advisors over their department and agency heads?
Appointment Power The Constitution empowers the president to appoint all federal judges
and Supreme Court justices, and top-level cabinet and executive agency personnel (including the ambassadors who represent the United States around the world), subject to Senate con rmation (see Chapter 7). In addition, presidents may hire White House staff as they see t. These appointments amount to over 6,000 people by recent estimates. This ability is considered a source of power, because it gives the president the ability to shape the Executive Branch. The president has the power to appoint area and issue experts and/or to reward loyal supporters with jobs ( patronage’’). Also, while judicial appointments serve for life, Executive Branch appointments (except for those in regulatory agencies) serve at the president’s pleasure’’ (meaning they may be
red at any time, without cause). As mentioned earlier, this power is best illustrated at the start of each new administration, especially if the new president is not from the same party as the outgoing one. At that time, most, if not all, incumbent department and agency heads resign to allow the incoming president to nominate friendly’’ replacements.4
3 When she was President Reagan’s Assistant for Public Liaison, Elizabeth dole once ironically remarked, The president doesn’t want any yes-men and yes-women around him. When he says no, we all say no’’ 4 Though rarely admitted, there is evidence that most presidents ask new appointees to submit a standing letter of resignation. Presidents will pull out these letters when they want to replace someone but wish to avoid the distasteful act of ring them (which sometimes leaves the impression that the president erred in their hiring).
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Legislative Power Though not part of the Legislative Branch, many consider the president
our chief legislator’’ (Rossiter, 1956, p. 14 see also Cavalli, 2006). The president is an important actor throughout the legislative process. The presidency is actually the primary source of legislative proposals. In fact, in some instances, such as with the federal budget, the president is actually required by federal law to submit proposals.5 The Constitution even requires the president to recommend legislation from time to time’’ (Article II, Section 3). This process has become institutionalized as the president’s annual State of the Union Address.’’ This agenda setting function gives the president a lot of in uence over Congress’s legislative work (e.g., see Light, 1999).
Modern presidents tend to live or die by the success of their campaign proposals (Cavalli, 2006), which almost always involve legislative proposals. So, once proposals are submitted to Congress, presidents have a natural interest in taking steps to ensure their passage. Much of their time is spent building support for their proposals both publicly and with members of Congress.
The constitutional veto power (Article I, Section 7) also gives presidents in uence at the end of the process. All legislation must be presented to the president who may sign it into law (or allow it to become law without signature after ten days) or reject it with a veto, which the Congress may try to override and enact into law on its own6 (see Chapter 7).
So, the head of the Executive Branch is actually one of the most in uential players in the legislative process at all stages: The beginning (recommends legislation), the middle (builds support), and the end (signs or vetoes).
Chief Diplomat and Commander-in-Chief The president is also our chief diplomat and commander in chief of
our armed forces. The president effectively manages our relationship with the rest of the world. As chief diplomat, the president meets with foreign heads of state, negotiates treaties, and enters into executive agreements
5 The Budget Act of 1921 requires the president to submit a budget to Congress every year. A related example is the Employment Act of 1946 which requires the president to submit an annual economic report to Congress that includes direction on how to achieve future economic goals. 6 Except for pocket vetoes,’’ which are vetoes occurring while Congress is not in session. Pocket vetoes may not be overridden.
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with them, and receives foreign ambassadors in recognition of their government. As commander-in-chief, the president oversees the nation’s military establishment:
In times of peace he raises, trains, supervises, and deploys the forces that Congress is willing to maintain. With the aid of the Secretary of Defense, the Joint Chiefs of Staff, and the National Security Council—all of whom are his personal choices—he looks constantly to the state of the nation’s defenses. (Rossiter, 1957, p. 11)
In [times of war] the President’s power to command the forces swells out of all proportion to his other powers. All ma or decisions of strategy, and many of tactics as well, are his alone to make or to approve. (Rossiter, 1956, p. 12)
WHO LET THE DOGS OUT?: Though the Constitution makes the president the commander-in-chief of our armed forces (Article II, Section 2), it gives the power to declare war to the Congress (Article I, Section 8). The power to, as Shakespeare put it, Cry Havoc,’ and let slip the dogs of war’’ (Julius Caesar, Act III, Scene I) is actually divided between the two branches. This division has generated a long-lasting tension between them that particularly ared up during the ietnam War. As with all post-World War II military actions, this war’’ was never declared by Congress. Presidents simply began committing troops into military action without seeking a formal declaration from Congress. The escalation of the ietnam War by presidents Lyndon Johnson and Richard Nixon in the face of drastically declining public and congressional support led Congress to pass the War Powers Resolution in 1973. The act limits the president’s ability to commit troops into hostile action without the express consent of Congress (see Chapter 14). Though never challenged in court for fear of losing, all presidents since its passage have considered the act an unconstitutional infringement on their power as commander-in-chief. Congress, also fearing that they would lose a court challenge, has never fully insisted on the act’s enforcement. Instead, the two sides seem to have reached a mutual understanding where presidents will continue to commit troops to action without any formal war declaration by Congress.