The Boundaries of Presidential Power

I. Ceremonial Head of State The Roosevelt Taft Debate The Roosevelt Taft Debate “Steward” v. “Magistrate” “Steward” v. “Magistrate”

II. President as Chief Executive “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” and does “vested” imply wide discretion? Are there limits to the power to “take care” 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 Milligan 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 at Guantánamo 1. Hamdi v. Rumsfeld (2004)—U.S. Citizens must get a “meaningful opportunity” to challenge their detention. [Hamdi convicted of terrorism August 2008] 1. Hamdi v. Rumsfeld (2004)—U.S. Citizens must get a “meaningful opportunity” to challenge their detention. [Hamdi convicted of terrorism August 2008] 2. Rasul v. Bush (2004) 2. Rasul v. Bush (2004) Detainees at Guantánamo were entitled to due process in American courts. Detainees at Guantánamo were entitled to due process in American courts.

3. Hamdan v. Rumsfeld (2006)-- military commissions to try detainees, created without asking Congress to agree, overstepped his authority under the Constitution’s separation of powers. 3. Hamdan v. Rumsfeld (2006)-- military commissions to try detainees, created without asking Congress to agree, overstepped his authority under the Constitution’s separation of powers. Boumediene v. Bush (2008)--ruled that prisoners at Guantanamo Bay have a right to challenge their detentions in the federal courts Boumediene v. Bush (2008)--ruled that prisoners at Guantanamo Bay have a right to challenge their detentions in the federal courts

Issue b: Truman and Steel Seizure Youngstown Sheet and Tube v. Sawyer On Executive Powers: “Their use can make a Lincoln or Jefferson administration; their nonuse can make a Buchanan or Grant administration.”

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”

Obama Executive Orders Stem cell research Stem cell research Closing of Guantanamo Closing of Guantanamo Reorganizing of Executive Office Reorganizing of Executive Office 147 orders as of 2/15/ orders as of 2/15/13

Issue d: Executive privilege

The Nixon Tapes Case

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 Regarding issue of handling of classified material: the Vice Presidency is not “an entity within the executive branch.” Regarding issue of handling of classified material: the Vice Presidency is not “an entity within the executive branch.” Claim later withdrawn Claim later withdrawn

Issue d: National Security Power State Secrets Power U.S. v. Reynolds (1953)

The Case of Anwar al-Aulaqi Lethal force Lethal force Legal if: Legal if: Imminent threatImminent threat of violent attack of violent attack Capture not feasibleCapture not feasible Consistent withConsistent with “law of war” principles

III. President as Chief Legislator: Innovative uses of “the veto” “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, 1933–2013 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 101st–102nd Clinton103rd–106th G. W. Bush 107th–110th Obama th22 Total in history 1,4961,0672, (4%)

Pocket Veto Nixon and the “recess” pocket veto Nixon and the “recess” pocket veto

Item veto One year wonder Clinton v. New York —request for reinstatement by Bush

The Signing Statement Bush—12 vetoes, 4 overridden Bush—12 vetoes, 4 overridden Bush added signing statements challenging the constitutionality 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 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

Obama and Signing Statements “signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed.” “signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed.”

Chadha family and Congressional veto Ruled unconstitutional, but used anyway

IV. President as Commander-in Chief The President shall The President shall be Commander in Chief of the Army and Navy of the United States

Strategic Placement of Troops: Theodore Roosevelt and the “White Fleet”

Korea and Vietnam: Undeclared Wars

War Powers Resolution, 1973

The Bushes and the Middle East Similarities and differences

2001 Authorization to Use Military Force AUMF AUMF

V. President as Chief Diplomat “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”

Woodrow Wilson and The Treaty of Versailles

Checks and balances

Executive Agreements Increased use Increased use Bricker BrickerAmendment 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. Since 1939, more than 90% of international agreements have been executive agreements.