Powers of the President of the United States

The President of the United States has numerous powers, including those explicitly granted by Article II of the United States Constitution, implied powers, powers granted by Acts of Congress, and the influence and soft power that comes from being President of the United States of America.

The Constitution explicitly assigns to the president the power to sign or veto legislation, command the armed forces, ask for the written opinion of his Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. With the approval of two-thirds and one-half of the House of Representatives and the Senate, respectively, the president may make treaties and appoint Article III judges and some executive branch officers, and if there is a Senate recess, he may make temporary appointments.

Executive powers

Within the executive branch itself, the president (if in office) has broad powers to manage national affairs and the workings of the federal government. The president can issue rules, regulations, and instructions called executive orders, which have the binding force of law upon federal agencies but do not require congressional approval.

According to the Budget and Accounting Act of 1921, the president is also responsible for preparing the United States' budget, although Congress must approve it.^[1] The Office of Management and Budget assists the president with the preparation of the budget. In the past (but no longer), the president was able to impound funds as he saw fit. The power was available to all presidents and was regarded as a power inherent to the office. The Congressional Budget and Impoundment Control Act of 1974 was passed in response to large-scale power exercises by President Nixon. This act also created the Congressional Budget Office as a legislative counterpoint to the Office of Management and Budget.

As Commander in Chief of the armed forces of the United States, the president may also call into federal service the state units of the National Guard. In times of war or national emergency, the Congress may grant the president even broader powers to manage the national economy and protect the security of the United States, but these are not powers granted by the United States Constitution to the president. During the Vietnam War in 1973, Congress passed the War Powers Act to severely limit the ability of the President to conduct warfare without Congressional approval. Congress has the power to declare the war (Article 1, sec 8), but if the president needs to send the troops to other countries for hostile reasons, he will need congressional confirmation within 48 hours. For any time beyond 60 days, further congressional approval will be required.

Powers related to Legislation

The president has several options when presented with a bill from Congress. If he agrees with the bill, then it is signed into law within ten days of receipt. If the president opposes the bill, he can veto it and return the legislation to Congress with a veto message suggesting changes.

Presidents must approve all of a bill or none of it; they do not have the ability to veto selectively. In 1996, Congress gave President Bill Clinton a line-item veto over parts of a bill that require spending federal funds. In Clinton v. New York City the Supreme Court found Clinton's veto overturning pork-barrel appropriation for New York City to be unconstitutional because only a constitutional amendment could give the president line-item veto power.

If the Congress is still in session for ten business days after the president receives the bill, the legislation will become a law without the president's signature. However, if Congress adjourns within the ten business days of sending the bill to the president, the bill dies. If the president kills a bill in this manner there is nothing that Congress can do to override this, which is called a "pocket veto".

When signing a bill the president can also issue a signing statements that expresses his opinion on the constitutionality of a bill's provisions that intrude on executive power. He may even declare them unenforceable but the Supreme Court has yet to address this issue.

Congress can override vetoes with a two-thirds vote in both chambers, but this process is difficult and relatively rare. The threat of a presidential veto is usually sufficient to force Congress to modify a bill so that the President is willing to sign it.

Much of the legislation dealt with by Congress is drafted at the initiative of the executive branch. The president himself may propose legislation in annual and special messages to Congress including the annual State of the Union address and joint sessions of Congress. If Congress adjourns without acting on the proposals, the president may call a special session.

Beyond these official powers, the U.S. president, as a leader of his political party and the United States government, holds great sway over public opinion whereby he may influence legislation.

To improve their working relationships with Congress, presidents in recent years have set up an Office of Legislative Affairs. Presidential aides keep abreast of all important legislative activities.

Powers of Appointment

The President of the United States has several different appointment powers.

Before taking office, the president-elect must appoint more than 6,000 new federal positions.^[2] The appointments range from top officials at U.S. government agencies, to the White House Staff, and members of the United States diplomatic corps. Many, but not all, of these positions are appointed by the president with the advice and consent of the United States Senate.

The President also has the power to nominate federal judges, including members of the United States Courts of Appeals and the U.S. Supreme Court. However, these nominations do require Senate confirmation, and this can provide a major stumbling block for Presidents who wish to shape their federal judiciary in a particular ideological stance. The President must appoint judges for the United States District Courts, but he will not often defer to Senatorial courtesy in making these choices.

As head of the executive branch, the president must appoint the top officials for all of the federal agencies. These positions are listed in the Plum Book which outlines more than 7,000 appointive positions in the government. Many of these appointments are made by the president. In the case of ten agencies, the President is free to appoint a new agency head. For example, it is not unusual for the CIA Director or the NASA Administrator to be changed by the president. Other agencies that deal with federal regulation such as the Federal Reserve Board of Governors or the Securities and Exchange Commission have set terms that will often outlast presidential terms. For example, governors of the Fed serve for fourteen years in order to ensure agency independence. The president also appoints members to the boards of directors for government-owned corporations such as Amtrak. The President can also make a recess appointment if a position needs to be filled while Congress is not in session.

In the past, Presidents had the power to appoint all members of the United States civil service. This use of the spoils system allowed presidents to reward political supporters with jobs. Following the assassination of President James Garfield by Charles J. Guiteau, a disgruntled office seeker, Congress instituted a merit-based civil service in which positions are filled on a nonpartisan basis. The Office of Personnel Management now oversees the staffing of 2.8 million federal jobs in the federal bureaucracy.

The President must also appoint his staff of aides, advisers, and assistants. These individuals are political appointments and are not subject to review by the Senate. All members of the staff serve "at the pleasure of the President".^[3][4] Since 1995, the president has been required to submit an annual report to Congress listing the name and salary of every employee of the White House Office. The 2011 report, which can be viewed on the White House website, lists 454 employees.^[5]

Executive clemency

Article II of the United States Constitution gives the president the power of clemency. The two most commonly used clemency powers are those of pardon and commutation. A pardon is an official forgiveness for an acknowledged crime. Once a pardon is issued, all punishment for the crime is waived. The person accepting the pardon must, however, acknowledge that the crime did take place.^[6] The president maintains the Office of the Pardon Attorney in the U.S. Department of Justice to review all requests for pardons. Most pardons are issued as oversight of the judicial branch, especially in cases where the Federal Sentencing Guidelines are considered too severe. Pardons are controversial when they appear to be politically motivated.

This power can check the legislative and judicial branches by altering punishment for crimes. Presidents can issue blanket amnesty to forgives entire groups of people. For example, President Jimmy Carter granted amnesty to Vietnam draft dodgers who had fled to Canada. Presidents can also issue temporary suspensions of prosecution or punishment in the form of respites. This power is most commonly used to delay federal sentences of execution.

The president can also commute a sentence which, in effect, changes the punishment to time served. While the guilty party may be released from custody or not have to serve out a prison term, all other punishments still apply. President George W. Bush commuted the sentence of White House staffer Lewis "Scooter" Libby.

Foreign affairs

Under the Constitution, the president is the federal official that is primarily responsible for the relations of the United States with foreign nations. The president appoints ambassadors, ministers, and consuls —subject to confirmation by the Senate—and receives foreign ambassadors and other public officials. With the secretary of state, the president manages all official contacts with foreign governments.

On occasion, the president may personally participate in summit conferences where heads of state meet for direct consultation. For example, President Wilson led the American delegation to the Paris Peace Conference in 1919 after World War I; President Franklin D. Roosevelt met with Allied leaders during World War II; and every president sits down with world leaders to discuss economic and political issues and to reach agreements.

Through the Department of State and the Department of Defense, the president is responsible for the protection of Americans abroad and of foreign nationals in the United States. The president decides whether to recognize new nations and new governments, and negotiate treaties with other nations, which become binding on the United States when approved by two-thirds of the Senate. The president may also negotiate "executive agreements" with foreign powers that are not subject to Senate confirmation.

Emergency powers

The Constitution does not expressly grant the President additional powers in times of national emergency. However, many scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Because the Constitution remains silent on the issue, the courts cannot grant the Executive Branch these powers when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the President.

A claim of emergency powers was at the center of President Abraham Lincoln's suspension of habeas corpus without Congressional approval in 1861. Lincoln claimed that the rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the writ. With Chief Justice Roger Taney sitting as judge, the Federal District Court of Maryland struck down the suspension in Ex Parte Merryman, although Lincoln ignored the order. 17 F. Cas. 144 (1861).

President Franklin Delano Roosevelt similarly invoked emergency powers when he issued an order directing that all Japanese Americans residing on the West Coast be placed into internment camps during World War II. The U.S. Supreme Court upheld this order in Korematsu v. United States. 323 U.S. 214 (1944).

Harry Truman declared the use of emergency powers when he seized private steel mills that failed to produce steel because of a labor strike in 1952. With the Korean War ongoing, Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped. The U.S. Supreme Court, however, refused to accept that argument in Youngstown Sheet & Tube Co. v. Sawyer, voting 6-3 that neither Commander in Chief powers nor any claimed emergency powers gave the President the authority to unilaterally seize private property without Congressional legislation. 343 U.S. 579.

Executive privilege

Executive privilege gives the president the ability to withhold information from the public, Congress, and the courts in matters of national security. George Washington first claimed privilege when Congress requested to see Chief Justice John Jay's notes from an unpopular treaty negotiation with Great Britain. While not enshrined in the Constitution, Washington's action created the precedent for privilege. When Richard Nixon tried to use executive privilege as a reason for not turning over subpoenaed evidence to Congress for the Watergate hearings, the Supreme Court ruled in United States v. Nixon that privilege did not apply in cases where a president was attempting to avoid criminal prosecution. Later President Bill Clinton lost in federal court when he tried to assert privilege in the Lewinsky affair. The Supreme Court affirmed this in Clinton v. Jones, which denied the use of privilege in cases of civil suits.

Constraints on presidential power

Because of the vast array of presidential roles and responsibilities, coupled with a conspicuous presence on the national and international scene, political analysts have tended to place great emphasis on the president's powers. Some have even spoken of "the imperial presidency", referring to the expanded role of the office that Franklin D. Roosevelt maintained during his term.

President Theodore Roosevelt famously called the presidency a "bully pulpit" from which to raise issues nationally, for when a president raises an issue, it inevitably becomes subject to public debate. A president's power and influence may be limited, but politically the president is certainly the most important power in Washington and, furthermore, is one of the most famous and influential of all Americans.

Though constrained by various other laws passed by Congress, the president's executive branch conducts most foreign policy, and his power to order and direct troops as commander-in-chief is quite significant (the exact limits of what a president's military powers without Congressional authorization are open to debate).

The Separation of Powers devised by the founding fathers was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as "checks and balances". For example, the President appoints judges and departmental secretaries, but these appointments must be approved by the Senate. The president can veto bills, or deny them. If he does that, the bill is sent back to Congress.

See also

• Madisonian Model

References