The Boundaries of Presidential Power

Formal vs. Informal Power Formal: granted by the Constitution (AKA “express(ed)”, “explicit”, “constitutional”, “de jure”) Formal: granted by the Constitution (AKA “express(ed)”, “explicit”, “constitutional”, “de jure”) Informal: not explicitly granted by the Constitution, but exist anyway (AKA “implied”, “de facto”) Informal: not explicitly granted by the Constitution, but exist anyway (AKA “implied”, “de facto”) NOT NECESSARILY UNCOSTITUTIONALNOT NECESSARILY UNCOSTITUTIONAL *Note that this language applies to the powers of Congress as well.

I. Ceremonial Head of State (Formal?) The Roosevelt Taft Debate The Roosevelt Taft Debate

II. President as Chief Executive (Formal?) “He shall take Care that the Laws be faithfully executed.” “He shall take Care that the Laws be faithfully executed.” “executive power shall be vested in a President” “executive power shall be vested in a President” Are there limits to the power to “take care” (can he exercise judgment or just do what Congress says?) and does “vested” imply wide discretion? Are there limits to the power to “take care” (can he exercise judgment or just do what Congress says?) and does “vested” imply wide discretion?

Abraham Lincoln and Presidential prerogative “I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution” “I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution”

Lincoln and Taney Ex Parte Merryman (1861) Ex Parte Milligan (1866) Issue a: Suspension of habeas corpus

George W. Bush and Jose’ Padilla From “enemy combatant” to “civilian” From “enemy combatant” to “civilian”

Supreme Court Cases regarding Iraq War prisoners 1. Hamdi v. Rumsfeld (2004) 1. Hamdi v. Rumsfeld (2004) Re: US citizens detained as enemy combatants on American soil Re: US citizens detained as enemy combatants on American soil Citizens must get a “meaningful opportunity” to challenge their detention. Citizens must get a “meaningful opportunity” to challenge their detention. Hamdi convicted or terrorism August Released and deported to Saudi Arabia in 2009 Hamdi convicted or terrorism August Released and deported to Saudi Arabia in 2009

2. Rasul v. Bush (2004) 2. Rasul v. Bush (2004) Court found that Guantànamo Bay was within US jurisdiction and subject to its laws, meaning detainees there (including non- citizens) were entitled to due process in US courts (incl. habeas corpus) Court found that Guantànamo Bay was within US jurisdiction and subject to its laws, meaning detainees there (including non- citizens) were entitled to due process in US courts (incl. habeas corpus) Bush admin. objected to Sup. Crt. hearing the case (claimed no jurisdiction in GTMO) Bush admin. objected to Sup. Crt. hearing the case (claimed no jurisdiction in GTMO)

3. Hamdan v. Rumsfeld (2006) 3. Hamdan v. Rumsfeld (2006) Concerned the military commissions (courts or tribunals) established at Guantánamo Bay to try some detainees in the aftermath of 9/11. Concerned the military commissions (courts or tribunals) established at Guantánamo Bay to try some detainees in the aftermath of 9/11. Civilian court: must be public, requires unanimous jury (of peers) decision to convict, crimes defined by legislature, can be appealed to higher courtCivilian court: must be public, requires unanimous jury (of peers) decision to convict, crimes defined by legislature, can be appealed to higher court These special military tribunals: could be secret, requires only 2/3 vote of jury (of military officers) to convict, crimes defined by Defense Department (works for President), cannot appeal (though a panel of military officers can recommend a re-trial)These special military tribunals: could be secret, requires only 2/3 vote of jury (of military officers) to convict, crimes defined by Defense Department (works for President), cannot appeal (though a panel of military officers can recommend a re-trial) Court found that by creating the commissions without asking Congress to agree, the president had overstepped his authority under the Constitution’s separation of powers. (Congress has Const. power to establish “inferior” courts.) Court found that by creating the commissions without asking Congress to agree, the president had overstepped his authority under the Constitution’s separation of powers. (Congress has Const. power to establish “inferior” courts.)

Boumediene v. Bush (2008) Boumediene v. Bush (2008) Ruled part of “Military Commissions Act of 2002” unconst. Ruled part of “Military Commissions Act of 2002” unconst. Purpose of Act: “To authorize trial by military commission for violations of the law of war, and for other purposes” Purpose of Act: “To authorize trial by military commission for violations of the law of war, and for other purposes” Potential to be used to declare US citizens as unlawful enemy combatants and therefore no habeas corpus Potential to be used to declare US citizens as unlawful enemy combatants and therefore no habeas corpus

Issue b: Truman and Steel Seizure Youngstown Sheet and Tube v. Sawyer Truman tried to seize steel manuf. to prevent a strike during the Korean War. Truman tried to seize steel manuf. to prevent a strike during the Korean War. Court ruled seizure (“eminent domain”) is the power of Congress. Court ruled seizure (“eminent domain”) is the power of Congress.

Issue c: Lawmaking through Executive Orders Truman and the desegregation of the military (E.O. 9981) Truman and the desegregation of the military (E.O. 9981) It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible...

Lyndon Johnson and E.O “all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:” “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin” “all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:” “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin”

Issue d: Executive Privilege (Formal?)  President’s right to resist subpoenas in order to effectively carry out executive duties  Claimed by both Washington and Jefferson  Const. mentions right to have counselors  Has been upheld by Sup Crt.

US v. Nixon (1974)  Prosecutor wanted tapes of conversations involving Watergate  Nixon edited them and claimed “absolute, unequalified executive privilege from the judicial process under all circumstances” (citing sep. of powers and need for candor from advisors)  Unanimous Crt decision that judicial review allows Crt to decide how the Const. limits powers of President.

Clinton and the Lewinsky case

Bush Administration and Executive Privilege Argued that Executive Privilege precluded Congressional testimony of Harriet Miers and others regarding U.S. Attorney firings. Argued that Executive Privilege precluded Congressional testimony of Harriet Miers and others regarding U.S. Attorney firings.

Vice President Cheney: Executive or Not? 2001: Congressional probe into energy policy “would unconstitutionally interfere with the functioning of the executive branch.” 2001: Congressional probe into energy policy “would unconstitutionally interfere with the functioning of the executive branch.” In Court case, avoided claim of “executive privilege.” In Court case, avoided claim of “executive privilege.”

Cheney in 2007 Nat’l Archives sought to inspect the office of the VP in accordance w/ an EO endorsed by GWB (to check if classified materials handled properly) Nat’l Archives sought to inspect the office of the VP in accordance w/ an EO endorsed by GWB (to check if classified materials handled properly) To avoid the inspection, Cheney claimed the Vice Presidency is not “an entity within the executive branch.” To avoid the inspection, Cheney claimed the Vice Presidency is not “an entity within the executive branch.” Claim later withdrawn Claim later withdrawn

III. President as Chief Legislator: Innovative uses of “the veto” (Formal?) “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it” “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it” _presidential_vetoes _presidential_vetoes _presidential_vetoes _presidential_vetoes FDR sometimes asked his aides for “something I can veto” so he could send a message to Congress. FDR sometimes asked his aides for “something I can veto” so he could send a message to Congress.

Presidential Vetoes, 1933–2007 President Coincident Congresses Regular vetoes Pocket vetoes Total vetoes Vetoes overridden F. D. Roosevelt 73rd–79th Truman79th–82nd Eisenhower83rd–86th Kennedy87th–88th12921— L. B. Johnson 88th–90th161430— Nixon91st–93rd Ford93rd–94th Carter95th–96th Reagan97th–100th G.H.W. Bush 1 101st–102nd Clinton103rd–106th G. W. Bush 107th–108th Total in history 1,4921,0662, (4%)

Pocket Veto (Formal?) Normally only available in last 10 days of session of Congress Normally only available in last 10 days of session of Congress Nixon tried to use the pocket veto during Christmas recess Nixon tried to use the pocket veto during Christmas recess Court declared unconstitutional because not prevented from returning bill to Congress Court declared unconstitutional because not prevented from returning bill to Congress Now only allowed when Congress adjourns (“sine die” without setting a day for return) Now only allowed when Congress adjourns (“sine die” without setting a day for return)

Item veto (Formal?)  Line Item Veto Act of 1996  Only for appropriations leg. (primarily to prevent excessive pork defense spending)  Supported by Rep because would reduce deficit  One year wonder  Clinton v. New York declared unconst.  Request for reinstatement by Bush

The Signing Statement (Formal?) Statement of how President intends to implement law Statement of how President intends to implement law Bush—12 vetoes, 4 overridden Bush—12 vetoes, 4 overridden Bush added signing statements challenging the constitutionality (usually as interfering w/ power of President) of more than 1,100 separate sections in 150 laws. All the presidents who came before have added signing statements totaling 600 sections of law. Bush added signing statements challenging the constitutionality (usually as interfering w/ power of President) of more than 1,100 separate sections in 150 laws. All the presidents who came before have added signing statements totaling 600 sections of law. Domestic spyingDomestic spying “secret operations”“secret operations” Torture banTorture ban

Chadha Family and Legislative Veto  AKA Congressional Veto  Part of a law that requires the Exec. Branch to check with Congress before acting  Ruled unconstitutional (separation of powers), but used anyway

IV. President as Commander-in- Chief (Formal?) “The President shall “The President shall be Commander in Chief of the Army and Navy of the United States.” What about the Air Force?

Strategic Placement of Troops: Theodore Roosevelt and the “White Fleet”  Roosevelt sent 16 battleships to Asia as show of US power and presidential authority  He had authority to dispatch (as Comm-in-Chief), but only Congress could fund (and they refused)  TR sent ships anyway and challenged Congress to either fund or strand at sea.

Korea and Vietnam: Undeclared Wars

War Powers Resolution (or Act), 1973  Passed over Nixon’s veto.  President can commit forces for days, then forces must withdraw unless Congress declares war  Congress can pass concurrent resolution (w/ no veto) at any time to end American participation in hostilities  All Presidents since 1973 have considered unconstitutional (Why?)  Generally ignored and Congress reluctant to use (Why?)

George H.W. Bush & Iraq Debate in Congress when Bush threatened Hussein if he failed to pull out of Kuwait, but ended when divided Congress authorized force.

V. President as Chief Diplomat (Formal?) “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur” “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur” START Nuclear Arms Reduction Treaty

Woodrow Wilson and The Treaty of Versailles

Checks and balances

Executive Agreements (Formal?) Not formal treaty (gentlemen’s agreement between heads of state) Not formal treaty (gentlemen’s agreement between heads of state) Increased use (Why?) Increased use (Why?) Bricker Amendment proposed to limit this practice Bricker Amendment proposed to limit this practice Prior to 1940 the U.S. Senate had ratified 800 treaties and presidents had made 1,200 executive agreements; from 1940 to 1989, presidents signed nearly 800 treaties but more than 13,000 executive agreements.

Other Powers (Formal?) Appoint ALL national judges Appoint ALL national judges Appoint Cabinet and heads of agencies Appoint Cabinet and heads of agencies Pardon criminals (also grants clemency AKA “commutes” sentences) Pardon criminals (also grants clemency AKA “commutes” sentences) Impounding funds? (obstructing laws by instructing bureaucracy not to spend money allocated by Congress for a project; started w/ Jefferson) Impounding funds? (obstructing laws by instructing bureaucracy not to spend money allocated by Congress for a project; started w/ Jefferson) Congress has passed the Congressional Budget and Impoundment Control Act of 1974 to end this practiceCongress has passed the Congressional Budget and Impoundment Control Act of 1974 to end this practice All Presidents since Reagan have called for restoration of this power.All Presidents since Reagan have called for restoration of this power.