In the United States the government is dependent on the ability of checks and balances to even out what one branch can do over another. In the early days of the Constitution it was not unheard of to see a weak president. This has nothing to do with opinion on the President’s ideals. This has to do with the moving of legislation. (blocking and passing) Since the New Deal the United States has seen an era of very strong Presidency’s regardless of how affairs are conducted. To understand this shift in the balance one must take a look at the Presidency as well as the Legislative process.
The Presidency
Article II of the Constitution states how the President will be elected. During the writing of the Constitution the Framer’s were adamant on creating a Presidency that had the ability to energize the legislative process. This was to ensure that there was no stand still within the Legislative Branch. Though they took the stance of a strong and energetic President, they also wanted to make sure that the President’s power was checked all over the spectrum. One of the ways the Framer’s checked the Presidential power was the creation of the Electoral College system for voting in the President. This is a type of indirect election where electors are selected by state legislatures and vote within a closed election in the House of Representatives. Direct Election, where the constituents directly vote for the President, would have created a very independent and powerful Presidency that the Framer’s feared.
Though this system worked in checking the balance of power within the Presidency, it did not afford equal representation due to the Electoral College’s nature of the caucus system. This system was how delegates for President were nominated within Congress. The nominees, however, were completely beholden to the party’s leaders in Congress during the election and, if elected, during the presidency. So the system was changed to the national nominating convention which was a system that was completely separate from Congress and afforded more representation for party’s that were in the minority. This afforded the President more power because it gave the President independence from Congress.
(Ginsberg, 517-519)
Expressed Powers: Military: Article II, Section 2, which grants the power of Commander and Chief of the U.S Armed Forces.
Judicial: Article II, Section 2, which grants the President the power to give reprieves and pardons to those convicted of crimes against the United States. For example: When Prohibition of Alcohol was overturned those convicted received a Presidential pardon.
(This does not include impeachment)
Diplomatic: Article II, Section 2 and Article II, Section 3. These sections grant the President the power to create treaties (with consent of the Senate) and receive Ambassadors, Article II, Section 3 is important because it gives the President the power to recognize a countries status as a legitimate country.
Executive: Article II, Section 3. Allows the President the ability to see to it that all laws are executed properly. Article II, Section 2 also grants the President the ability to appoint federal judges and executive offices.
Legislative: Article 1, Section 7 and Article II, Section 3. Grants the President the ability to be apart of the legislative process.
Fact:Congress has not declared war since 1941.
Types of Power
Over the years the President has been granted specific powers that are either expressed, delegated, or inherent. These powers are stated in Article II of the United States Constitution.
Expressed Powers: Expressed powers are the powers directly granted by the Constitution.
Delegated Powers: These powers are granted to the President by Congress.
Inherent Powers: These are the inferred powers of the President. (Not specifically stated in the Constitution)
Inherent Power, The Road to a Strong Presidency
The Presidency undergoes a pretty substantial change in the 1900’s. One big change was the President’s increased power when declaring war. This power is specifically vested in the Constitution to Congress. The President, in the name of Harry S. Truman, acted without the go ahead from Congress when invading Korea in 1950. Truman stated that it is an inherent power of the President to send America’s military might where the President saw fit. Congress approved of Truman’s actions due to the necessity of the situation. This became the standard for declaring war in the future.
Congress in the 1970’s did try to decrease the President’s inherent power regarding war by passing the War Powers Resolution. This stated that the President had to inform Congress of any plans for military deployment and stated that forces must be withdrawn within sixty days if there is no congressional authorization. President’s have ignored this Resolution, however.
Along with this power, Article IV, Section 4 provides the President the ability to protect States using Federal troops when facing invasion and domestic violence. This can only be done by the request of state legislatures or the states governor.
Military emergencies have led to quick action by Congress and the President to give more power to the Executive. For example: After September 11, 2001, Bush had the Patriot Act passed which greatly expanded the use of surveillance by the government. This Act also created the Department of Homeland Security.
(Ginsberg, 519-521)
This increase in Presidential power continues through a number of areas such as the executive agreement. As stated above the President must obtain the Senate’s approval to draw out Treaties with other Countries. However, President’s began to utilize the executive agreement to expand the power of the Presidency.
Because of the nature of executive agreements, and their ability to afford the President the power to conduct Diplomatic affairs without the consent of Congress, Congress passed the Case-Zablocki Act which states that a President must provide a list of all executive agreements at the end of the year. This act is often disregarded.
The Executive Order
Another area of Presidential power is the executive order. Think about the ability of a CEO to manage their business as they see fit. They are in charge of rule setting, procedures, etc. The President, as chief executive, has the inherent power to set rules that has the effect of legislation. To explain this further, one must look at the delegated powers of the President and where they come from.
The Executive Power, stated above, grants the President the power to appoint federal judges, ambassadors, and executive officers. (With consent of the Senate) One other thing that the President gains as the chief executive is executive privilege. This means that a President has the ability to retain confidentiality between him/her and their advisers. This is based off of the secrecy required to create treaties.
President’s also play a major role in the Legislative Process. This is due to the power of the veto and pocket veto. A veto is the President’s ability to decline a bill that has passed the Congress. A pocket veto is a veto that is automatically triggered if Congress passes a piece of Legislation ten days before the end of a session and the President does not act on it within those ten days. One of the ways the President has been able to extend legislative power is by the legislative initiative. This is another example of the President using the “inherent powers” argument. A legislative initiative is the President’s inherent power to bring an agenda before Congress.
Example: when the President gives his “State of the Union” address and he/she defines their motives for the duration of their Presidency. Think of the ACA as President Obama’s legislative initiative.
(Ginsberg, 523-527)
Examples of Agencies and Departments in the ExecutiveDepartment of Homeland Secruity
Internal Revenue Service
Occupational Safety and Health Administration
Environmental Protection Agency
The New Deal
The New Deal was a set of legislation pushed through Congress by Franklin D. Roosevelt. This legislation was meant to revitalize the depressed economy by abandoning the gold standard, cheap loans to help factories and farms, and huge investments in public works programs. He also passed through his Social Security Act which kick started the idea of America as a welfare state. (Turner, 1337)
Delegated Powers, The Reason for a Strong Presidency
Delegated Powers are powers given to the Executive by Congress. This has been a trend ever since the New Deal under President Roosevelt. Due to the nature of legislation passed by Congress involving social programs, Congress cannot maintain the necessary departments and agencies to implement and run these programs. This leaves Congress with one option, delegate the power to the executive which can create and act on agencies and departments quickly.
One issue with delegated powers is the ambiguous legislation that can, and often is, passed by Congress. If a piece of legislation is ambiguous to its’ intent then the Executive has the ability to implement the law as they see fit. An example of this is the 1933 National Industrial Recovery Act. This Act gave the President power to set rules for fair competition in the economy. This Act did not define specifics and gave no process on how it should be implemented. Since the Executive often has the ability to implement their delegated powers as they see fit, it grants enormous power to the President because of the inherent power of the executive order. (Stated above)
Side Note: How a Bill Becomes a Law:
A bill does not simply go to the House or Senate for a vote. It goes through a series of committees that define, redefine, and change the bill before it hits the floor for a vote.
First the bill is sent to the appropriate committee or subcommittee and debated.
Next the bill is sent to the Hearings Committee for a markup session. This is where the bill undergoes any changes expressed in the debates prior.
After that it goes to the Rules Committee (Majority Leader in the Senate) which designate closed or open rule for the bill. Closed Rule means that new amendments can not be added during debate in Congressional session. Open Rule means new amendments may be added during Congressional Session.
Then the bill hits the House/Senate floor and is voted/amended.
The bill is then sent to conference committees if there are amendments and further debate needed.
Once adoption is done by both houses then the bill goes to the White House where it is approved, vetoed (pocket vetoed).
The House and Senate can override a veto with a two-thirds vote.
Growth of Key Agencies
The Executive Office of the President are the agencies created in the Executive Branch that run and regulate the differing programs assigned to it by Congress. Modern President’s have worked to increase the White House staff within the EOP which gives the President the power of oversight because it increases the President’s “eyes, ears, and arms”. The more people that work within the EOP, the more the President is able to accomplish.
The ability of Regulatory Review has also been expanded by the President in recent years. This has to do with the ambitiousness of delegated powers (as stated above) and that the President has the ability to set appropriate rules for those agencies.
The power of the Executive Order has also grown with the growth of inherent and delegated power. A President cannot use the power of Executive Order to do whatever he/she wants. The power is restrained by the Constitution. However, as the President’s inherent and delegated powers grow so does the extent of the President’s executive order.
The last expansion of power by the President is the signing statement. This is an announcement made by the President when signing a bill into law. This gives the President the ability to interpret the law and state which areas they feel are unconstitutional, as well as how the executive agencies will handle the new piece of legislation.
(Ginsberg, 527-547)
My Opinion
The Framer’s feared a strong President due to the fear of aristocracy. The entire American Revolution was built upon the tyranny of the King of England. It is interesting to see how strong the President has become over the years while Congress slowly loses power. This is in no fault to the democratic system in place. This is mainly due to the idea of the Welfare State and Congress’ inability to define how programs should be run. Obviously Congress retains the right to set taxes and budgets which give them some wight in the delegation process, but when any person can step into the role of President and push through immense change, there is need for re balancing. If Congress continues to utilize an ambiguous tone with their legislation then the role of the Executive will continue to grow until it will become the most influential branch out of the three. This can and will be dangerous.
Sources Cited:
1: Ginsberg, Benjamin. “Chapter 13, The Presidency.” We the People: An Introduction to American Politics. New York: W.W. Norton, 2013. 515-48. Print.
2: Turner, Barry. “United States of America.” The Statesman’s Yearbook 2013: The Politics, Cultures and Economies of the World. Basingstoke: Palgrave Macmillan, 2012. 1335-364. Print.
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