2.4—Roles & Powers of the President

The job of a United States President is often said as the most difficult and most powerful job in the world–some of those powers are formal and come directly from the U.S. Constitution, and others just come with the nature of the job, called informal powers. For example, if a president walks up to the press, chances are they are going to pay attention and blast that message across the country even though there’s nothing in the constitution guaranteeing that privilege.

What you need to learn

The formal and informal powers of the United States President

Formal Powers

Article II, U.S. Constitution

signing bills into law

veto

pocket veto

armed forces & commander & chief

Informal Powers

bargaining and persuasion (bully pulpit)

executive order

signing statement

executive agreement

*Students commonly mix up the enumerated & unenumerated powers of Congress with the formal and informal powers of the presidency. Congress gets its unenumerated powers from the Necessary & Proper Clause of the Constitution. But there isn’t a “necessary and proper clause” for the president, those informal powers come from the nature of the job only.

Roles and Powers of the Presidency

The American presidency comes with ceremony, custom, and expectation. Presidential institutions, such as the White House, Air Force One, and the State of the Union address, are likely familiar to you. Signing ceremonies and photo opportunities with foreign dignitaries are common images. The Constitution lays out the president’s job description in broad language. The president has both formal and informal powers and functions to accomplish a policy agenda, a set of issues that are significant to people involved in policymaking. The American presidency, visible on a world scale, is an iconic and powerful institution that has become much more influential over time. Presidents administer the law through a large bureaucracy of law enforcement, military, trade, and financial agencies. Chief executives meet with world leaders, design the national budget, and campaign for their party’s candidates.

Framers’ Vision

The delegates in Philadelphia in 1787 voted to make the presidency an executive office for one person. Fears arose because skeptics saw this office as a potential “fetus of monarchy.” One delegate tried to allay such fears, explaining “it will not be too strong to say that the station will probably be filled by men preeminent for their ability and virtue.”

Article II

The Constitution requires the president to be a natural-born citizen, at least 35 years old, and a U.S. resident for at least 14 years before taking office. The president is the Commander in Chief and also has the power to issue pardons and reprieves, and to appoint ambassadors, judges, and other public ministers. The president can recommend legislative measures to Congress, veto or approve proposed bills (from Article I), and convene or adjourn the houses of Congress. The framers also created a system by which the Electoral College chooses the president every four years.

Presidential Powers, Functions, and Policy Agenda

The president has many powers and functions that enable him to carry out the policy agenda he laid out during the campaign. The president exercises the formal powers of the office, those defined in Article II, as well as the informal powers, those political powers interpreted to be inherent in the office, to achieve policy goals. Congress and the Supreme Court have bestowed additional duties and placed limits on the presidency.

Formal and Informal Powers

A president cannot introduce legislation on the House or Senate floor but in many ways still serves as the nation’s chief lawmaker. Article II also gives the president the power to convene or adjourn Congress at times. As the head of state, the president becomes the nation’s chief ambassador and the public face of the country. As Commander in Chief, the president manages the military. Running a federal bureaucracy that resembles a corporation with nearly three million employees, the president is a CEO. And finally, as the de facto head of the party, the president becomes the most identifiable and influential Republican or Democrat in the country.

Chief Legislator

The Constitution provides that the president “may recommend [to Congress] such measures as he shall judge necessary and expedient.” Presidents may recommend new laws in public appearances and in their State of the Union address or at other events, pushing Congress to pass their proposals. Congress often leaves this proactive approach to policy leadership to the president rather than taking it upon itself. Presidents have asked Congress to pass laws to clean up air and water, amend the Constitution, create a national health care system, and declare war. A president with a strong personality can serve as the point person and carry out a vision for the country more easily than any or all of the 535 members of Congress.

Powers of Persuasion

The president uses a number of skills to win support for a policy agenda. The president will use bargaining and persuasion in an attempt to get Congress to agree with and pass the legislative agenda. President Trump’s most notable bill to pass Congress in his first year was a major tax overhaul that reduced corporate taxes from 35% to 21% and changed federal income tax rates, lowering them, at least temporarily, for a vast majority of citizens. The Tax Cuts and Jobs Act passed only after Trump, a real estate developer, used his skills as a salesman to push for it. As Politico reported, “He has spent weeks wooing, prodding, cajoling, and personally calling Republican lawmakers to pass sweeping tax legislation in time for Christmas.” He closed on this tax bill as he would have closed a real estate deal decades ago, with a hard and convincing sell. Using his informal political powers, Trump personally called the wavering members of the Senate. The White House organized a speech and presentation, showcasing how the changes would impact some average families, personalizing the promises of the bill.

Veto

The president has the final stamp of approval of congressional bills and also a chance to reject them with the executive veto. After a bill passes both the House and the Senate, the president has ten days (not including Sundays) to sign it into law. If vetoed, “He shall return it,” the Constitution states, “with his objections to the House in which it shall have originated.” This provision creates a dialogue between the two branches, enables Congress to consider the president’s critique, and encourages consensus policies.

At times, a president will threaten a veto, exercising an informal power that may supersede the formal process. When disagreements between the president and his party or the majority of Congress over the details of a new law exist, the president may threaten to veto, conditionally, if the bill is not satisfactory. Congressional proponents of a bill will work cooperatively to pass it, reshaping it if necessary, to avoid the veto.

The use of the veto has fluctuated throughout presidential history. When there is a divided government—one party dominating Congress and another controlling the presidency—there is usually a corresponding increase in vetoes. The last three presidents, at times, each served with divided governments during their eight years as president. Democrat Bill Clinton had 37 vetoes; Republican George W. Bush and Democrat Barack Obama each had 12.

The president can opt to neither sign nor veto. Any bill not signed or vetoed becomes law after the ten-day period. However, if a president receives a bill in the final ten days of a congressional session and does nothing, this pocket veto allows the bill to die.

Congress can override a presidential veto if two-thirds of each house approves the bill. Reaching the two-thirds threshold is very challenging and fewer than 10 percent of a president’s vetoes are overridden. (See Topic 1.6 for more on overriding vetoes.)

Line-Item Veto

Since the founding, presidents have argued for the right to a line-item veto. This measure would empower an executive to eliminate a line of spending from an appropriations bill or a budgeting measure, allowing the president to veto part, but not all, of the bill. Many state governors have the line-item veto power. In 1996, Congress granted this power to the president for appropriations, or new direct spending, and limited tax benefits. Unlike a Congress member, the president has no loyalties to a particular congressional district and can thus sometimes make politically difficult local spending cuts without concern for losing much regional or national support.

Under the new act, President Clinton cut proposed federal monies earmarked for New York City. The city sued, arguing that the Constitution gave Congress the power of the purse as an enumerated congressional power, and New York City believed this new law suddenly shifted that power to the president. The Court agreed that the only way to give the president this power would be through a constitutional amendment and struck down the act in Clinton v. City of New York (1998). Presidents and fiscal conservatives continue to call for a line-item veto to reduce spending. There is little doubt that such power would reduce at least some federal spending. However, few lawmakers (who can currently send pork barrel funds to their own districts) are willing to provide the president with the authority to take away that perk.

Commander in Chief

The framers named the president the Commander in Chief with much control over the military. The Constitution, however, left the decision of declaring war solely to the Congress. The question of what constitutes a war, though, is not always clear.

Senator Barry Goldwater proclaimed in the waning days of the Vietnam conflict, “We have only been in five declared wars out of over 150 that we have fought.” His point was fair, although his estimate was debatable. The issue remains: Should all troop landings be considered wars that therefore require congressional declarations?

When a military operation is defensive, in response to a threat to or attack on the United States, the executive can act quickly. FDR ordered U.S. troops to Greenland in 1940 after the Nazis marched into Denmark but before any U.S. declaration of war. President Clinton bombed Iraq after discovering the failed assassination attempt on his predecessor, the elder President Bush. President Obama authorized the U.S. mission in 2011 to capture or kill Osama bin Laden, the al-Qaeda founder responsible for the September 11, 2001, attacks. A U.S. Navy Seal team was on the ground in Pakistan for only about 40 minutes. Some believe that actions such as these stretch the meaning of “defensive” too far. Yet how successful would this mission have been if Congress had to debate publicly and vote in advance on whether or not to invade the unwilling country that harbored bin Laden?

The Cold War era greatly expanded the president’s authority as Commander in Chief. In the early 1960s, one senator conceded that the president must have some war powers because “the difference between safety and cataclysm can be a matter of hours or even minutes.” The theory of a strong defense against “imminent” attack has obliterated the framers’ distinction and has added an elastic theory of defensive war to the president’s arsenal. Imminent-defense theorists argue the world was much larger in 1789, considering warfare, weaponry, and the United States’ position in the world. Today, with so many U.S. interests abroad, an attack on American interests or an ally far from U.S. shores can directly and immediately impact national security.

Chief Diplomat

Through treaties, presidents can facilitate trade, provide for mutual defense, help set international environmental standards, or prevent weapons testing, as long as the Senate approves. President Woodrow Wilson wanted the United States to join the League of Nations after World War I, but the Senate refused to ratify Wilson’s Treaty of Versailles.

An executive agreement resembles a treaty yet does not require the Senate’s two-thirds vote. It is a simple contract between two heads of state: the president and a prime minister, king, or president of another nation. Like any agreement, such a contract is only as binding as each side’s ability and willingness to fulfill the promise. To carry it out, a president will likely need cooperation from other people and institutions in the government. These compacts cannot violate prior treaties or congressional acts, and they are not binding on successive presidents.

Presidents have come to appreciate the power of the executive agreement. President Washington found conferring with the Senate during each step of a delicate negotiation extremely cumbersome and perhaps dangerous. It compromised confidentiality and created delays.

Executive agreements can ensure secrecy or speed or avoid ego clashes in the Senate. During the Cuban Missile Crisis in October 1962, President Kennedy discovered the Soviet Union’s plan to install nuclear missiles in Cuba. Intelligence reports estimated these weapons would be operational within two weeks. After days of contemplation, negotiation, and a naval standoff in the Caribbean

Acquiring the Panama Canal Zone

“Speak softly and carry a big stick.” These words of President Theodore Roosevelt describe his foreign policy in relation to Latin America, where he wanted to assert U.S. power. However, the words might also describe his approach to Congress.

Shortly after becoming President, Roosevelt spoke to Congress about the importance of linking the Atlantic and Pacific Oceans to shorten trade routes with a canal through Panama. Using his powers of persuasion, Roosevelt convinced the Senate to pass a treaty to acquire the canal zone from Colombia, but the government of Colombia balked.

Panamanians had long wanted their independence from Colombia and struck a deal with the United States. If American forces supported Panamanian independence, the new government would sell the land to the United States to build a canal. Leaders of American business interests in the area offered bribes to Panamanian officials to let the rebellion prevail, and Roosevelt sent the USS Nashville to the region in a show of rebel support, an example of Roosevelt’s so-called “gunboat diplomacy.” Colombia agreed to grant independence to Panama. Soon after, the Canal Zone was sold to the United States.

Some in the United States saw Roosevelt’s participation in the rebellion as an act of piracy or worse. But Roosevelt defended his actions and use of executive powers, saying years later, “If I had followed traditional, conservative methods, I should have submitted a dignified state paper of probably two hundred pages to Congress, and the debate would have been going on yet. But I took the Canal Zone, and let Congress debate, and while the debate goes on, the Canal does also!” The treaty was finally ratified in 1904; the canal opened in 1914.

Returning the Canal Zone to Panama

The canal cut Panama into two sections, with the Canal Zone under the control of the United States. Over time, the continued involvement of the United States strained relations between the two nations. Only after decades of conflict did the United States soften its “big stick” policy and support more democracy in the region.

Panama’s desire to fly its flag over the Canal Zone had long been a source of tension. On January 9, 1964, violence erupted when the only Panamanian flag flying in the Canal Zone was torn. A number of protesting students overwhelmed Canal Zone police, and U.S. troops were brought in. Twenty Panamanians were killed. In Panama, that day has since become known as Martyrs’ Day. Panama broke off diplomatic relations with the United States and demanded a new treaty.

When Jimmy Carter became president (1977-1981), he articulated his approach to foreign policy with an emphasis on morality. “Our policy is based on a historical vision of America’s role. Our policy is rooted in our moral values, which never change. Our policy is designed to serve [hu]mankind.” Returning the Canal Zone to Panamanian control was high on Carter’s list of foreign policy objectives for several reasons. First, he saw the control of the Canal Zone as a holdover from an imperial past and wanted to remove any symbolic representation of imperialism, believing it affected U.S. relations with all Latin American countries. Also, he believed it was the moral responsibility of the United States to respect the complete self-governance of Panama.

Carter set in motion a carefully planned effort to win support in Congress for the return of the Canal Zone to Panama, relying on powers of persuasion and personal relationships to achieve his goals. Specifically, he and his legislative team provided extensive briefings and education to members of Congress and sent them to the region to gather information firsthand, and Carter got personally involved in discussions. His team was also meticulous about learning exactly which lawmakers’ votes they could count on and which votes they needed to nurture. They developed an extensive public relations campaign to educate the American people on the issue and made visits to congressional districts where pressure from constituents might sway a member’s vote.

Carter’s patient diplomacy with Congress paid off. In 1978, new agreements that guaranteed the U.S. military protection of the canal to assure fair and full passage and also formally returned full sovereignty to Panama over the Canal Zone beginning on December 31, 1999, were ratified by a Senate vote of 68-32.

Chief Executive and Administrator

How the president and his appointees enforce or implement a new law will shape the administration’s policy agenda. Using executive orders, signing statements, and running the machinery of the vast executive branch mark how a president carries out the powers and functions as the chief executive. The Supreme Court has defined some of the gray areas of presidential power. For example, the president can fire most Senate-approved subordinates without cause.

Executive Orders

An executive order empowers the president to carry out the law or to administer the government. Unlike a criminal law or monetary appropriation, which requires Congress to act, a presidential directive falls within executive authority. For example, the president can define how the military and other departments operate.

Executive orders have the effect of law and address issues ranging from security

clearances for government employees to smoking in the federal workplace. In 1942, for example, President Franklin Roosevelt (FDR) issued the infamous Executive Order 9066, which allowed persons identified by the secretary of war to be excluded from certain areas. This executive order resulted in the internment of Japanese Americans during World War II. In 1948, through an executive order, President Harry Truman directed the military to racially integrate. Recently, President Donald Trump issued an executive order outlining an immigration policy that limited travelers entering the United States from six countries with Muslim-majority populations. Executive orders cannot address matters under exclusive congressional jurisdiction, such as altering the tax code, creating new interstate commerce regulations, or redesigning the currency. Executive orders can also be challenged in court. The Supreme Court upheld both FDR’s wartime internment and Trump’s travel ban.

Signing Statements

Though the president cannot change the wording of a bill, several presidents have offered signing statements when signing a bill into law. These statements explain their interpretation of a bill, their understanding of what is expected of them to carry it out, or just a commentary on the law. A signing statement allows a president to say, in effect, “Here’s how I understand what I’m signing and here’s how I plan to enforce it.” Critics of the signing statement argue that it violates the basic lawmaking design and overly enhances a president’s last-minute input on a bill.

Executive Privilege

Starting with George Washington’s precedent, presidents have asserted executive privilege, the right to withhold information or their decision-making process from another branch, especially Congress. They have particularly asserted that they need not make public any advice they received from their subordinates to protect confidentiality. Presidents have also claimed that such information is privileged, protected by the separation of powers.

President Richard Nixon tested executive privilege during the Watergate scandal when Nixon and others were accused of covering up criminal actions against political rivals. Nixon refused to turn over investigator-subpoenaed tapes, alleged to reveal the president’s knowledge of the 1972 break-in at the Watergate Office Building to steal information about the Democratic Party. Nixon declared his secretly recorded conversations were protected from congressional inquiry by executive privilege. In U.S. v. Nixon (1974), the Supreme Court did acknowledge that executive privilege is constitutional and necessary at times. Yet, the Court unanimously agreed the tapes amounted to evidence in a criminal investigation and therefore were not protected by executive privilege. Nixon turned over the recordings.