An Imperial Presidency? The Executive vs. Congress and the Courts

I. Can Congress Check the President? A. What predicts Presidential success in Congress? 1.Presidential popularity has little effect – Only a slight effect in the Senate, none in the House 2.Partisanship: Same-party members more supportive a. Effect is largest for first-term Congresspeople b. Effect is largest during non-election years 3.Issue Type: Foreign policy success more likely than domestic policy success 4.Proaction vs. Status Quo – President is more successful at stopping unfriendly bills than passing friendly ones

B. What predicts executive success in the bureaucracy? 1. Legislative Vetoes: Congress attaches strings to delegation of power a.Declared unconstitutional – INS vs. Chadha b.Hundreds of new legislative vetoes passed since INS vs. Chadha! – Effective because Congress refuses to delegate authority when Presidents ignore legislative vetoes

2. Executive Orders a. Presidents issue more executive orders under united government! b. Orders rarely overturned – because Presidents don’t issue them if they anticipate a veto-proof majority against them

C. War Powers: Does Congress Have a Role? 1. Declaration of War vs. Commander-in-Chief: Which clause governs initiation of combat? a.Early 19 th Century: Congress authorizes military action short of war against France, Barbary Pirates, American Indians, etc. b.Late 19 th Century – Early 20 th Century: Presidents begin deploying small detachments of Marines without advance approval from Congress c.1950: Truman calls the Korean War a “police action” and says no declaration of war is needed d.1989: Bush invades Panama without asking Congress for authority e.1991: Bush argues that UN Security Council approval eliminates need for Congressional approval (then asks for it anyway). Clinton repeats the argument for UN/NATO approval in 1994 (Haiti and Bosnia) and 1999 (Kosovo)

2. War Powers Act a. Enacted in 1973 b. Requires President to notify Congress and get permission to continue hostilities beyond 60 days c. Repudiated as unconstitutional by all Presidents since d. No military action has ever been curtailed by the War Powers Act

3. The “Power of the Purse” a. Congress must approve all expenditures b. Congress can stop wars by cutting off funds c. Process is rarely used i.Never used during war – No one will vote to leave US troops stranded, and Presidents threaten not withdraw them before money runs out ii.Used to prevent escalation: Southeast Asia (1973), Central America (1980s – circumvented) d. Some argue process is unconstitutional: Reagan rejected constitutionality of Boland Amendment

II. Can Courts Check the President? A. The power of judicial review: limited by Court’s inability to enforce decisions 1.Jefferson threatens to ignore the Court – Marbury vs. Madison as a strategic decision 2.Jackson ignores the Court – Worcester vs. Georgia 3.Lincoln ignores the court repeatedly – Dred Scott, Ex parte Merryman 4.Nonenforcement is extremely rare: requires public opposition to Court legitimacy

B. Limits on the Court’s Power 1. Case or Controversy – Real dispute must exist; no advisory opinions 2. Stare Decisis – Respect precedent 3. Political Question Doctrine – Avoid questions best decided through political process or by another branch 4. Comity – Treat other branches as equals (avoid interfering in internal processes) 5. Jurisdiction – Congress can strip Court of jurisdiction over some cases 6. Standing – Parties must have specific personal stake in outcome

C. Courts as a Check on the Executive Bureaucracy 1. Courts now follow doctrine of deference on regulatory decisions 2. Actual amount of deference seems to depend on Presidential popularity

D. Effectiveness of the Court vs. Presidential Power 1. Domestic policy – Effective: Truman’s Seizure of Steel Mills, Nixon’s Tapes, etc. 2. Foreign Policy – Ineffective a.Treaties must be Constitutional – But not one has ever been struck down b.War powers limited – But political question doctrine normally prevents resolution c.Extreme deference on national security – willingness to base decisions on unknown secret information

III. Conclusions A. Domestic policy – Presidential power highly limited 1.Presidential programs easily blocked by Congress, also subject to Court review 2.President does have some ability to prevent disliked domestic policy through nonenforcement or veto power B. Foreign policy – President is virtually unconstrained