Constitutional Powers of the Presidency In 2016
The constitutional powers and duties of the president are outlined in Article II. In spite of popular belief, far fewer explicit powers are granted to the president in Article II than to Congress in Article I.
Two passages in our governing document have provided the basis for the expansion of constitutional powers of presidential authority. Article II, Section 1, grants “the executive Power” to the president, and Section 3, makes the president responsible for the enforcement of federal laws: “he shall take Care that the Laws be faithfully executed.” Americans seem to interpret this as omnipotence of the President.
It’s important to understand how limited the powers of the presidency are in the Constitution despite how vast people think those powers are. Congressional Quarterly allows us greater understanding on those powers as chief executive and chief of state as well as in legislative and foreign affairs.
The Constitution provides very few instructions about the president’s tasks as head of the executive branch, and doesn’t make direct provision for the vast administrative structure that the president must oversee. It does, however, authorize the president to demand written reports from the “principal Officer in each of the executive Departments, upon any Subject, relating to the Duties of their respective Offices.”
Appointment and Removal Power
One of the most important constitutional powers of the president is administrative in appointing people to fill high-level positions in the cabinet. Article II, Section 2, gives the president the power to select top officials, subject to Senate approval.
The Constitution does not clearly establish a budgetary process or spell out the presidency’s role in such a process. Article I of the Constitution gives Congress power over taxes and spending, while Article II, Section 3, gives presidents constitutional powers in recommending fiscal policies. The key is recommending not dictating or demanding.
The president’s constitutional powers in law enforcement rests on the requirement that the president “take Care that the Laws be faithfully executed.” The president serves as chief executive of what has become a vast law enforcement apparatus. Should assistance be needed, the president can invoke the authority of “commander in chief” and deploy the armed forces, including units of state militia, to enforce the law.
The Constitution gives the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The framers specifically included this power to enable the president to make well-timed offers of pardon to those in domestic rebellion against the government, when such a move might help restore order.
The Constitution is reticent about the president’s role in legislating, yet the relationship between Congress and the executive is the most important aspect of the U.S. system of government. This is seemingly the biggest source of confusion today with the electorate as far as the powers of the president as opposed to Congress.
Under the Constitution, presidents may respond to a bill passed by Congress in one of three ways. They may sign it, veto the bill by returning it to Congress, or do nothing. If they do nothing, the bill becomes law after the passage of ten days, excluding Sundays. If Congress adjourns sooner than ten days after the bill passed, however, the bill dies, under the “pocket veto” provision. If the president vetoes a bill, Congress can still enact it into law by passing the measure again with two-thirds majorities in both chambers.
The Constitution also authorizes the president to “recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” Given the presidency’s relatively weak array of formal devices for mandating government policy, the ability to shape the agenda of government is in essence the power to influence what government will or will not do. This assumes of course you can convince Congress of your agenda.
The section of the Constitution that allots to the president “executive power” is one of the least specific but potentially most important in the document. When paired with the provision requiring presidents to take care that laws are faithfully executed, the executive power clause provides for a range of implied powers.
An offshoot of the implied powers doctrine is the executive order. This critical instrument of active presidential power is nowhere defined in the Constitution but generally is construed as a presidential directive that becomes law without prior congressional approval. It is based either on existing statutes or on the president’s other constitutional responsibilities. Executive orders usually pertain specifically to government agencies and officials, but their effects often reach to the average citizen.
The mandate in Article II that the president “preserve, protect and defend” the Constitution and uphold its provisions is considered to contain implicitly the notion of emergency powers. Otherwise, emergency powers are neither granted expressly to the president nor delegated to Congress by the Constitution.
The Constitution grants few foreign affairs powers to the president. Although it gives the president authority to make treaties and appoint ambassadors, it allots Congress a range of powers in the area that are at least equal to those of the president.
Article II, Section 2, Clause 2, gives the president constitutional powers to make treaties with other countries, subject to ratification by a two-thirds majority of the Senate. The president cannot bring about a final agreement without the concurrence of most senators; however, they can stop the process at any time if they think the pact would be voted down on a full Senate vote, or if they dislike any changes the Senate has made.
An executive agreement is a pact other than a treaty made by the president with a foreign government. The executive agreement is a particularly powerful foreign policy tool because it allows Presidents to act without seeking congressional backing. The chief limitation on executive agreements is that, unlike treaties, they do not supersede any U.S. laws with which they might conflict.
Recognition and Appointment Powers
Although the Constitution does not explicitly grant presidents the power to recognize foreign governments, it is generally accepted that they have this power as a result of their authority to send and receive ambassadors. Because the acts of sending an ambassador to a country and receiving its representative imply recognition of the legitimacy of the foreign government involved, presidents have successfully claimed exclusive authority to decide which foreign governments will be recognized by the United States. It follows, then, that they have the power to terminate relations with another nation as well.
Commander in Chief
The Constitution states that the president “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” That is the only statement in the document about the president’s war-making power.
Chief of State
The president also serves as the chief of state of the United States, presiding over ceremonial functions. The president’s role as chief of state as described in the Constitution includes the obligation to take the oath of office, deliver an annual State of the Union message, and receive ambassadors from other countries.
Constitutional Powers of The President in 2016
It’s clear since our founding, Congress has ceded lawmaking power to the executive branch. Congress seems to be unwilling to make the “tough choices” that are their rightful responsibility, and litter their bills with phrases such as “the Secretary shall determine” that put the onus on a cabinet agency all too willing to take it. It’s the reason, for instance, regulations continue to pour out of Dodd-Frank: Through the creation of the Financial Stability Oversight Council, Congress left all discretion over whether a bank has gotten too big to the Treasury secretary, rather than outlining a metric itself.
Alternatively, existing work requirements for those receiving state assistance were originally put in place by the last major welfare-reform bill, passed through a Republican Congress in 1996. But in 2012, President Obama took unilateral action to water them down, seizing on language in the bill that gave rulemaking power to the Department of Health and Human Services. Republican lawmakers, despite making a public stink over the move, took no steps afterward to rewrite the law.
It’s important to understand the proper role of government and what our roles are as citizens. If we don’t, powers will be given to the executive that we may like when they support our agenda, but won’t when they do not.